Standlee v. Smith

• Decision Date: 31 January 1974
• Docket Number: No. 42729,42729
• Citation: 518 P.2d 721,83 Wn.2d 405
• Parties: In the Matter of the Application for a Writ of Habeas Corpus of Daryl STANDLEE, Petitioner, v. Sidney E. SMITH, as Secretary of the Department of Social and Health Services of the State of Washington, Respondent.
• Court: Washington Supreme Court

Page 405

83 Wn.2d 405

518 P.2d 721

In the Matter of the Application for a Writ of Habeas Corpus

of Daryl STANDLEE, Petitioner, v. Sidney E. SMITH, as Secretary of the Department of Social and Health Services of the State of Washington, Respondent.

No. 42729.

Supreme Court of Washington, En Banc.

Jan. 31, 1974.

Rehearing Denied March 29, 1974.

Phillip H. Ginsberg, Seattle King Co. Public Defender, Seattle, for petitioner.

Slade Gorton, Atty. Gen., Thomas A. Prediletto, Asst. Atty. Gen., Olympia, for respondent.

BRACHTENBACH, Associate Justice.

Petitioner seeks a writ of habeas corpus. The matter was first presented to the Court of Appeals which entered an order denying the writ. We granted review.

Petitioner was on parole when the Board of Prison Terms and Paroles entered an order suspending that parole based upon alleged violations of the terms and conditions thereof. The six violations alleged were based on charges that petitioner had abducted a mother and her daughter, had subsequently assaulted them, attempted to rape the mother and molested the daughter. The day before the revocation hearing was held the petitioner was charged by information with two counts of assault in the second degree.

A revocation hearing was then held with petitioner being represented by counsel. The hearing officer found petitioner guilty of the six charged violations, but continued the hearing, at defense counsel's request, until the felony charges were tried.

A nonjury trial of the assault charges resulted in acquittal based upon an alibi defense. The revocation hearing was then concluded with the same alibi testimony being presented to the hearing officer. That officer concluded that petitioner was in fact the assailant, that parole should be revoked and that petitioner was a risk to society in view of his past history of sexual assaults.

Petitioner's main contention is that the doctrine of collateral estoppel prohibits the parole board from finding him guilty of violations when the issue of guilt had been resolved in his favor in the superior court. The doctrine of collateral estoppel prevents relitigation between the same parties of a particular issue or determinative fact. Bordeaux v. Ingersoll Rand Co.,71 Wash.2d 392, 429 P.2d 207 (1967).

There is no doubt that collateral estoppel is a part of the Fifth Amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

Equally clear is the proposition that the revocation of parole is not part of a criminal prosecution. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Parole is revoked for violation of the terms and conditions of parole and as part of the continuing consequences of the crime for which parole was granted. Parole revocation is not punishment for the subsequent events which violate the parole and which may also constitute a separate crime. People v. Morgan, 55 Ill.App.2d 157, 204 N.E.2d 314 (1965).

The distinction between a criminal proceeding and a parole revocation hearing is important because of the rule that a difference in the degree of the burden of proof in the two proceedings precludes application of collateral estoppel. In Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938), the court was confronted with an attempt by Internal Revenue to assess a deficiency for fraud with intent to evade tax after the taxpayer had been acquitted on an indictment for willful attempt to evade tax. Mr. Justice Brandeis said at 397, 58 S.Ct. at 632:

The difference in degree of the burden of proof in criminal and civil cases precludes application of the doctrine of Res judicata. The acquittal was 'merely . . . an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.' Lewis v. Frick, 233 U.S. 291, 302, 34 S.Ct. 488, 492, 58 L.Ed. 967.

Neaderland v. Commissioner of Internal Revenue, 424 F.2d 639, 642 (2d Cir. 1970), is instructive as to the reason for nonapplication of collateral estoppel where the degree of proof varies.

Collateral estoppel is confined, however, to 'situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged.' . . . Even if the issue is identical and the facts remain constant, the adjudication in the first case does not estop the parties in the second, unless the matter raised in the second case involves substantially 'the same bundle of legal principles that contributed to the rendering of the first judgment.' . . .

. . . When a jury acquits, it decides only that an accused is not proven guilty of the offense charged beyond a reasonable doubt, and the Commissioner is not foreclosed thereby from attempting to show fraud in the civil counterpart against the same defendant by a fair preponderance of the evidence. Helvering v. Mitchell, Supra, 303 U.S. at 397--398, 58 S.Ct. 630. This burden of proof factor alone is sufficient to demonstrate that the 'bundle of legal principles' applicable in a civil suit differs significantly from that in a criminal trial.

(Citations omitted.)

It is clear that there is a different level of proof applicable to revocation hearings than criminal proceedings. In describing comparable probation revocation proceedings, this court said:

At the probation revocation hearing, the court need not be furnished with evidence establishing guilt of criminal offenses beyond a reasonable doubt. . . . All that is required is that the evidence and facts be such as to reasonably satisfy the court that the probationer has breached a condition under which he was granted probation, or has violated any law of the state or rules and regulations of the Board of Prison Terms and Paroles.

(Citations omitted.) State v. Kuhn, 81 Wash.2d 648, 650, 503 P.2d 1061, 1062 (1972).

Such distinction has been recognized elsewhere.

The degree of proof necessary for parole or probation revocation is less than that required to sustain a criminal conviction. The hearing judge need only be reasonably satisfied that the terms of the parole have been violated . . .

State v. Wilhite, 492 S.W.2d 397, 399 (Mo.App.1973). Accord, People v. Kuduk, 320 Ill.App. 610, 51 N.E.2d 997 (1943); People v. Whittaker, 101 Ill.App.2d 432, 243 N.E.2d 467 (1968).

Here the alibi witness created a reasonable doubt in the trial judge's mind and he necessarily acquitted petitioner. On the other hand, with a lesser standard of proof, the hearing officer believed the victims, discounted the alibi witness who had created a reasonable doubt in the judge's evaluation and importantly felt the petitioner was a threat to society if at large. The hearing officer may have been influenced by petitioner's initial refusal to testify or to identify the alibi witnesses at the first hearing.

Keeping in mind the different procedures and purposes of the two separate proceedings, and relying on the above principles, we hold that collateral estoppel does not prohibit the parole revocation under these circumstances.

Petitioner relies heavily on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). It is true that those cases establish that certain minimum requirements of due process apply to revocation hearings. However, we do not read those decisions as prohibiting the result we reach here. Both cases emphasize the limited rights accorded the parole or probation violator. The Morrissey case, in fact, recognizes the interests of society in dealing with revocation in a non-adversary manner:

Given the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.

Finally petitioner contends that he was denied due process because one alibi witness was not present at the final revocation hearing. He alleges that this was due to his inability to pay her expenses to travel from Oregon. However, a transcript of the witness' testimony at the superior court was presented to the hearing officer. Gagnon v. Scarpelli, Supra at 783, 93 S.Ct. at 1760, n. 5, answers the issue:

While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.

The writ is denied.

HALE, C.J., FINLEY, ROSELLINI, HUNTER, STAFFORD and WRIGHT, JJ., and LeVEQUE, J., pro tem., concur.

HAMILTON, J., not participating.

UTTER, Associate Justice (dissenting).

My narrow area of disagreement with the majority is whether, under the circumstances of this case, the burden of proof beyond a reasonable doubt should apply to the allegations of the violation in a parole revocation hearing. In this case, the parole revocation hearing was concluded after the defendant's acquittal on the criminal charges and, as I understand the majority opinion, it concedes that, if the beyond a reasonable doubt test applies, the parole board would be collaterally estopped to reach a different result from the superior court trial which applied that test.

In Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972), the court stated:

We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee...