Sigman v. Whyte
| Decision Date | 15 July 1980 |
| Docket Number | No. 14856,14856 |
| Citation | 268 S.E.2d 603,165 W.Va. 356 |
| Parties | Randal Eugene SIGMAN v. William WHYTE, Superintendent, Huttonsville Correctional Center. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. An order revoking probation may be reviewed by a writ of habeas corpus; if the habeas corpus is granted a transcript of the probation revocation proceeding will be made available.
2. Counsel appointed to represent a probationer at his probation revocation may file a petition for habeas corpus to protest a probation revocation if he believes review is warranted. The cost of filing a petition for habeas corpus will be paid by the State as an integral part of the representation for an indigent at the probation revocation hearing.
3. The State may proceed with a probation revocation proceeding based upon commission of another crime without first obtaining a final disposition of that crime.
4. Where a probation violation is contested, the State must establish the violation by a clear preponderance of the evidence.
Hugh Rogers, Jr., Kerens, for petitioner.
Chauncey H. Browning, Jr., Atty. Gen., Silas B. Taylor, Asst. Atty. Gen., Charleston, for respondent.
In this original habeas corpus we are asked to examine the procedure for appellate review of probation revocation hearings. Randal Eugene Sigman pled guilty to unarmed robbery in the Circuit Court of Kanawha County in 1976. He received a five to eighteen year sentence which was suspended and he was placed on five years probation on 15 September 1976. 1 On 22 October 1978 relator was involved in an automobile accident and was charged with violating his probation by intentionally defacing personal property, possessing controlled substances, and assaulting an individual.
The preliminary hearing for probation revocation was held on 6 December 1978 before Judge Andrew MacQueen who dismissed the assault charges but found probable cause for revocation for defacing personal property and possession of controlled substances. Judge John Hey presided over the final revocation hearing and he excluded all evidence concerning the drugs seized from relator's automobile and dismissed the charges relating to possession; however, he found that relator had violated his probation by unlawfully injuring and defacing personal property. On 23 February 1979, Judge Hey reinstated the original sentence of five to eighteen years in the State penitentiary. 2
Relator attempted to appeal his probation revocation on various grounds, but could not obtain a transcript of his revocation hearing. Beginning 24 April 1979 relator began requesting the Circuit Court of Kanawha County for a transcript of his hearings and other documents. Relator also persuaded his attorney to confer with Judge Hey and his attorney wrote a letter to the judge on 14 September 1979 which produced an order from Judge Hey that the circuit clerk send relator transcripts of the revocation hearings held in February 1979. Relator never received a copy of the transcripts. On 21 December 1979 relator mailed a Writ of Habeas Corpus to the circuit clerk which was sent by Certified Mail; however, the only response which he received was the clerk's signature upon receipt.
After another letter noting that he had not received any reply from the circuit court, relator filed pro se the present petition for Writ of Habeas Corpus in this Court on 2 April 1980, and the petition was granted 1 May 1980. Counsel for relator finally received transcripts of the revocation hearing 16 June 1980, one day before oral argument in this Court.
This Court and the Supreme Court of the United States have set forth the procedural due process required for revocation of probation and parole, in each case expressly recognizing that probationers and parolees do not enjoy the same rights enjoyed by defendants before conviction. 3 In State v. Fraley, W.Va., 258 S.E.2d 129, 130 (1979), we recognized that we must "begin with the proposition that the revocation of parole (probation) is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole (probation) revocation." 4 Since the Morrissey, supra decision, there seems to be no doubt that a probationer is entitled to a review of an order by which he is deprived of his liberty; however, we have not determined the precise nature of this review.
Probation is a statutory creation, and as such there is no requirement that direct appeal be the proper method of judicial review of a judgment revoking probation. In the absence of any statutory direction, 5 we hold that in order to reach the Supreme Court for a probation revocation hearing the relator must come in habeas corpus. While the ABA Standards suggest that the order revoking probation should be appealable after the offender has been resentenced, 6 we find that our sister states are divided on the method of review. 7
Relator argues that the history of this case amply demonstrates that habeas corpus is not an adequate substitute for an appeal. 8 We disagree, however, because along with the right to come before this Court in habeas corpus any defendant whose probation has been revoked will have the right to counsel through the preparation of a habeas corpus petition to be brought before this Court. Our Court has historically granted extensive due process rights to probationers. In State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90 (1968), we included the appointment of counsel at a probation revocation hearing, a higher standard than that imposed by Gagnon, supra which indicated that the appointment of counsel in all cases of probation revocation is not mandatory. We recommitted ourselves to this principle in Louk, supra. Obviously relator has a persuasive argument that the State was extraordinarily derelict in not providing him a transcript after it was ordered by the trial court. However, we feel that this decision and the review that the relator receives in this instance renders that argument moot.
The assistance of an appointed attorney who is familiar with filing habeas corpus insures that an individual who has had his probation revoked will have an opportunity to voice his grievances. The right to a transcript is not extended absolutely because we do not believe the cost to be justified; presumably the individual will be served by the same attorney who represented him during the probation revocation hearing who will be familiar with the facts. Since the grounds for questioning a probation revocation are simple and can be summarized in a petition for habeas corpus review, it is an undue burden to require the State to supply a transcript in every routine case. Once a prima facie case of illegal revocation is made on the habeas corpus petition, a transcript can be ordered.
Now we turn to the nature of the probation revocation hearing itself. Persons on probation who arguably violate a criminal law potentially face two proceedings: a hearing to revoke their conditional liberty and a criminal trial. 9 We refuse to require a criminal prosecution before a probation revocation. 10 We find probation revocation hearings sufficiently formal that we do not fear an innocent man being incarcerated. Criminal prosecutions are time consuming and expensive; furthermore, once the State has given a defendant the benefit of full due process to determine his guilt and has then restored him to conditional liberty, the State should not be required to spend the same amount of time and money again when it is determined that the second chance was unjustified. 11 Since one prison term will have the same rehabilitative and deterrent effect as two, it is not unreasonable to revoke probation and forego expensive prosecution. The passage of time alone will make it impossible to proceed with criminal charges after the defendant has completed his sentence on the original charge for which probation was revoked. State ex rel. Leonard v. Hey, --- W.Va. ---, 269 S.E.2d 394 (1980).
In order to allay fears that the revocation proceeding will be abused by the law enforcement authorities we require that the evidence against the probationer be proven by a clear preponderance of the evidence. In requiring that the evidence be proven by a clear preponderance we have exceeded the standard of a preponderance of evidence which has been recommended by the ABA Project on Standards for Criminal Justice, Standards Relating to Probation, § 5.4(a)(iii), at 65 (Approved Draft 1970). 12 Proof beyond a reasonable doubt is not imposed as the United States Supreme Court said in Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), "(r) evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole (probation) restrictions."
Finally we turn to a consideration of the probation revocation sub judice. While counsel for the relator had no opportunity to review the transcript of the revocation proceeding since it was not provided until a day before the oral argument, we have considered the testimony at the hearing and we conclude that relator was shown to be guilty of unlawfully injuring and defacing personal property by a clear preponderance of the evidence.
For the foregoing reasons the writ of habeas corpus prayed for is denied.
Writ denied.
1 The probation terms and conditions were:
He shall not violate any of the laws of the State of West Virginia, or any other State or of the United States.
You shall not leave the State of West Virginia without the consent of this Court or the written consent of your supervising probation officer.
You shall comply with all of the rules and regulations of this Court and any orders or directives of your supervising probation officer.
You shall abstain from possessing or using...
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