Shum v. Fogliani

• Decision Date: 22 April 1966
• Docket Number: No. 5047,5047
• Citation: 82 Nev. 156,413 P.2d 495
• Parties: Harold Russell SHUM, Appellant, v. Jack FOGLIANI, Warden, Nevada State Prison, Respondent.
• Court: Nevada Supreme Court

Page 495

413 P.2d 495

82 Nev. 156

Harold Russell SHUM, Appellant, v. Jack FOGLIANI, Warden, Nevada State Prison, Respondent.

No. 5047.

Supreme Court of Nevada.

April 22, 1966.

Roger L. Erickson, Reno, for appellant.

Harvey Dickerson, Atty. Gen., and John G. Spann, Deputy Atty. Gen., Carson City, for respondent.

THOMPSON, Justice.

This appeal is from an order denying post conviction relief on a petition for habeas corpus. The petitioner had pleaded guilty to the crime of embezzlement. Sentence was imposed, its execution suspended, and the petitioner placed on probation. He was later brought before the court for having violated the conditions of probation. Probation was revoked and the petitioner imprisoned. The issue in this habeas proceeding is whether the petitioner should be released from prison because he was not represented by counsel when brought before the court on the proceeding to revoke his probation. The petitioner is an indigent. We rule that a court need not appoint counsel for an indigent on a proceeding to revoke probation, and affirm the order below.

The extraordinary remedy of habeas corpus is appropriate to test the legality of a conviction which is challenged on constitutional grounds. Dean v. Fogliani, 81 Nev. 541, 407 P.2d 580 (1965); Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965). Here, of course, the constitutionality of the underlying conviction is not questioned. The petitioner's guilt of the underlying crime was constitutionally established. On a proceeding to revoke probation, the court is not concerned with the probationer's guilt or innocence of the underlying crime. Rather, its sole concern is whether the privilege of probation should be revoked because of the failure to meet the conditions imposed. And, if revocation is ordered, the sentence he is required to serve is punishment for the underlying crime rather than for his failure to comply with the terms of probation. Brown v. Warden, U.S. Penitentiary, 351 F.2d 564 (7th Cir. 1965). For these reasons, decisions regarding the federal constitutional right to counsel at various stages of a criminal prosecution are not controlling. Cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In the cases just cited, the denial of counsel was deemed to have destroyed the validity of the conviction. That consideration is not present on a proceeding to revoke probation.

In the federal law, probation is a privilege granted by Congress. The source of the probationer's privilege is to be found in the Federal Probation Act. One convicted of crime is not given a right to probation by the federal constitution. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932); Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935); Brown v. Warden, U.S. Penitentiary, supra; Welsh v. United States, 348 F.2d 885 (6th Cir. 1965); United States v. Huggins, 184 F.2d 866 (7th Cir. 1950); Gillespie v. Hunter, 159 F.2d 410 (10th Cir. 1947); Bennett v. United States, 158 F.2d 412 (8th Cir. 1946). Accordingly, the rights of an offender in a proceeding to revoke his conditional liberty under probation or parole are not coextensive with the federal constitutional rights of one accused in a criminal prosecution. Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963); Richardson v. Markley, 339 F.2d 967 (7th Cir. 1965); Brown v. Warden, U.S. Penitentiary, supra.

We think that the same reasoning applies to probation in Nevada. One convicted of crime is not given a right to probation by the Constitution of Nevada. Art. 5, § 14, empowers the legislature to 'pass laws conferring upon the district courts authority to suspend the execution of sentences, fix the conditions for, and to grant probation, and within the minimum and maximum periods authorized by law, fix the sentence to be served by the person convicted of crime in said courts.' In line with that authority, the legislature provided for probation. The probationer's rights, therefore, must be found within the legislative expression and not elsewhere. Cf. Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960), where we held that parole was not a constitutional right but, rather, a right bestowed by legislative grace; Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965), wherein we intimated as much with regard to probation. New Mexico has ruled otherwise, expressing the view that due process requires that an indigent probationer be furnished counsel. Blea v. Cox, 75 N.M. 265, 403 P.2d 701 (1965). Though that point of view has appeal, we cannot accept it. Probation is a privilege legislatively given, and without constitutional implications. One is not deprived of his liberty without due process of law when he has pleaded guilty to the charge against him and does not question the validity of his conviction. He might have been imprisoned forthwith. By reason of legislative provision, he was afforded an opportunity to gain conditional liberty on probation. People v. Dudley, 173 Mich. 389, 138 N.W. 1044 (1912). Neither the federal constitution nor the Nevada constitution contains a specific provision designed to safeguard the rights of a convicted defendant whose case has become res judicata. As we find no federal or state constitutional right to counsel in a proceeding to revoke probation, we turn to consider whether such a right is given by statute. ¹

The statutory command is that the court 'shall cause the defendant to be brought before it.' Counsel is not expressly provided for and funds have not been appropriated for counsel if the probationer is destitute. Cf. Hoffman v. State, 404 P.2d 644 (1965), where the Alaska Supreme Court held that equal protection required appointment of counsel for an indigent to avoid discrimination on the ground of proverty where the state statute specifically provided for right to counsel on proceedings for revocation of probation. In Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), Justice Cardozo stated the aim of a revocation hearing under the federal act which required the probationer to 'be taken before the court' is for the district having jurisdiction over him. He wrote: '* * * there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper.' A trial in the formal sense is not required. The inquiry to which the court referred in Escoe v. Zerbst, supra, is conducted by the court. This, we think, is likewise the kind of an inquiry contemplated by the Nevada statute. Accord: Thomas v. Maxwell, 175 Ohio St. 233, 193 N.E.2d 150 (1963); People v. Hamilton, 47 Misc.2d 1009, 263 N.Y.S.2d 658 (1965); Kennedy v. Maxwell, 176 Ohio St. 215, 198 N.E.2d 658 (1964). Though it may be desirable for the legislature to provide for counsel to represent probationers, it has not done so. As probation is a matter of legislative grace, we are not at liberty to add requirements.

Affirmed.

ZENOFF, District Judge, concurs.

WINES, District Judge (dissenting):

The petitioner was convicted upon a plea of guilty to the felony of embezzlement on November 5, 1963, in the Second Judicial District Court of the State of Nevada, in and for the County of Washoe. Thereafter, the petitioner was sentenced to a term of 2 to 14 years in the Nevada State Prison, but the sentence was suspended and the petitioner admitted to probation.

Prior to October 9, 1964, the petitioner was arrested on a warrant charging him with a violation of the terms and conditions of his probation. A probation revocation hearing was held on October 9, 1964. The petitioner was present at the hearing and, although the record does not reflect this, he requested the assistance of counsel from the court. Petitioner's allegation to that effect in his petition was not denied by the respondent in his return and the issues arrgued in the district court assumed this to be true. This is also true of the briefs and oral arguments to this court.

The assistant district attorney and petitioner's probation officer were present at the hearing, and the probation officer 'presented a probation report to the Court.' Counsel for the state approved the report and stated that the petitioner's probation should be revoked. The court, without hearing from the petitioner, ordered that the probation be revoked and that the sentence theretofore imposed be executed. The petitioner's writ of habeas corpus, addressed to the First Judicial District Court, was denied and the petitioner has appealed to this court.

The issues before this court are: (1) Does our statute, NRS 176.330, subsection 2, require notice and a hearing to a probationer when revocation is being considered? (2) At such a hearing should the court hear from the probationer? (3) Is the petitioner entitled to the assistance of counsel, and if he is an indigent should the court, upon his request, appoint counsel to represent him?

We begin with this proposition. In Nevada, as in other jurisdictions, there is no constitutional right to parole or probation. It is a statutory right gained through legislative grace. Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960); Varela v. Merrill, 51 Ariz. 64, 74 P.2d 569 (1937); Pagano v. Bechly, 211 Iowa 1294, 232 N.W. 798 (1930); People v. Dudley, 173 Mich. 389, 138 N.W 1044 (1912); State ex rel. Jenks v. Municipal Court of City of St. Paul, 197 Minn 141, 266 N.W. 433 (1936); In re Weber, 75 Ohio App. 206, 61 N.E.2d 502 (1945). If constitutional rights are not involved, the probationer has only those rights the legislature grants him. Burns...