State ex rel. Cresci v. Schmidt

• Decision Date: 05 March 1974
• Docket Number: No. 151,151
• Parties: STATE ex rel. James T. CRESCI, Appellant, v. Wilbur SCHMIDT, Secretary for the Department of Health and Social Services for the State of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 361

215 N.W.2d 361

62 Wis.2d 400

STATE ex rel. James T. CRESCI, Appellant, v. Wilbur SCHMIDT, Secretary for the Department of Health and Social Services for the State of Wisconsin, Respondent.

No. 151.

Supreme Court of Wisconsin.

March 5, 1974.

Rehearing Denied May 7, 1974.

James C. Wood, Dennis W. Egre, Milwaukee, for appellant.

Robert W. Warren, Atty.Gen., Charles R Larsen, Asst. Atty. Gen., Madison, for respondent. John F. Ebbott, Milwaukee, for Amici Latin American Union for Civil Rights, Inc. and Felons and Community together, and Milwaukee Legal Services, Inc.

David R. Clowers, Milwaukee, for Amicus Curiae Wis. Civil Liberties Union.

CONNOR T. HANSEN, Justice.

On August 4, 1965, James T. Cresci was convicted in the circuit court for Milwaukee county of two counts of armed robbery, contrary to sec. 943.32, Stats. Cresci was sentenced to two terms of ten years each in the Wisconsin state prison for these crimes, the two sentences to run concurrently.

On December 22, 1970, Cresci was paroled on mandatory release and signed a standard parole agreement on this same date.

On June 19, 1971, Cresci was arrested in Milwaukee county for operating a motor vehicle without a driver's license and obstructing an officer.

On June 21, 1971, Bruce Larsen, Cresci's parole agent, interviewed Cresci at the Milwaukee County Jail and discussed the possibility of revocation. The next day, the parole hold on Cresci was released after Cresci signed and amended parole ageement. The amended agreement was identical to the original agreement except that it added the following additional conditions:

'7. I will not at any time operate a motor vehicle.

'8. I will not travel out of Milwaukee County without permission of my parole agent.

'9. I agree to a curfew of 12:00 p.m. on weekdays and 1:00 a.m. on Friday & Saturday Nights.'

Three days later, on June 25, 1971, Cresci was arrested in Sheboygan with three friends, Mrs. Rachel Roman, Thomas Rosso, and Margaret Rose Langer, on charges of issuing worthless checks. At the time Cresci was arrested he had $700 in his possession. He claimed $500 of this sum had been given to him by his mother as bail for a brother who was in custody. The brother had escaped, hence the bail was not needed and he had not returned the money to his mother.

Larsen was subsequently notified of Cresci's arrest in Sheboygan and decided to recommend that Cresci's parole be revoked. Cresci requested a parole revocation hearing and Donald R. Schneider, Hearing Examiner, notified Cresci, by letter dated July 25, 1971, that a hearing had been set for July 30, 1971, which would determine whether there was cause for the revocation of his parole based upon the following reasons:

'1. You admitted to operating a vehicle without the advance permission of your supervising agent and without an operator's license and to giving a false name and producing another person's operator's license to a police officer on June 19, 1971;

'2. You admitted to traveling out of Milwaukee County to Sheboygan, Wisconsin, where you were arrested on June 25, 1971, in direct violation of your amended parole agreement of June 22, 1971.'

Larsen and Cresci both testified at the parole revocation hearing held before the hearing examiner, Schneider.

Larsen testified at the hearing that he had not given Cresci permission to leave Milwaukee county after he had signed the parole agreement in which he had agreed not to leave without permission. Cresci admitted that he left Milwaukee without permission, but claimed that he had been driving around on the morning of June 25th with his three other friends when he fell asleep in the back seat of the car, and when he was awakened he discovered that they had driven to Sheboygan. They were going to return to Milwaukee but decided to stop and eat first. They were arrested on the check charge as they were leaving the restaurant.

Roman, Rosso and Langer all submitted affidavits, and also testified at the hearing, that Cresci was not involved in the passing of bad checks in Sheboygan. Counsel for Cresci, on this appeal, argues that this check charge against Cresci has been dismissed.

Cresci testified that when Roman, Rosso and Langer came to his house on the morning of June 25th, at about 10 or 11 o'clock a.m., they asked him if he '. . . wanted to go riding around.' Cresci said he thought they meant riding around town and did not reality they meant leaving town.

Roman, Rosso and Langer all testified that Cresci had slept all the way to Sheboygan. Rosso had driven a car which was rented from Budget rental and they claimed that they did not know the territorial restriction in Cresci's parole agreement. Rosso also testified that when they went to Cresci's house that morning, Cresci appeared tired. Cresci further testified he had done some heavy drinking the previous evening.

Langer testified that the group had plans that morning of going to Sheboygan, but that Cresci had no idea of what they were going to do and had fallen asleep in the car.

At the conclusion of the hearing, the examiner filed a synopsis of testimony with findings of fact and his recommendation. The examiner found that the bureau had established and proven its allegations. The examiner also found that '. . . the parolee and his witnesses' credibility is subject to severe suspicion,' and that the action of the bureau was neither capricious nor arbitrary. The examiner recommended revocation. A formal revocation order was subsequently issued by the Secretary of the Department of Health & Social Services.

On September 3, 1971, Cresci sought review of this decision by certiorari in Milwaukee circuit court. On October 20, 1971, the action taken by the department in revoking parole was found to be neither arbitrary nor capricious by the circuit court.

It also appears that subsequent to the parole revocation, which is the subject of this appeal, Cresci was again paroled. While thus on parole, he was arrested and convicted of robbery and sentenced to a term of ten years, to run concurrent with the sentence upon which he had been paroled.

The issues raised on this appeal are as follows:

1. Whether the department's revocation of Cresci's parole was arbitrary or capricious?

2. Whether Cresci was improperly denied his right to the assistance of counsel at his parole revocation hearing?

REVOCATION.

In State ex rel. Johnson v. Cady (1971), 50 Wis.2d 540, 547, 185 N.W.2d 306, 310, it was determined that although there was no statutory right to a parole revocation hearing:

'. . . (t)he basic requirements of due process and fairness require that the department provide a limited hearing to allow petitioners to be confronted with their probation violation and to be heard if they so desire. . . .'

Johnson further considered the basic requirements of due process at such a hearing and the record required of such a hearing. Subsequently, in Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, the United States Supreme Court determined that the due process clause of the fourteenth amendment required that the state afford an individual an opportunity to be heard prior to revocation of his parole and stated, at page 480, 92 S.Ct. at page 2600:

'We begin with the proposition that the revocation of parole 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 revocations. . . .'

In discussing the various stages of a parole revocation, the United States Supreme Court emphasized that there was no thought to equate the actual parole revocation hearing to a criminal prosecution in any sense. Thus, having determined that due process applies to parole revocation proceedings, 'the question remains what process is due?' Morrissey v. Brewer, supra, p. 481, 92 S.Ct. p. 2600. In answering this question, it was determined that the minimum requirements of due process include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.

In State ex rel. Johnson v. Cady, supra, 50 Wis.2d p. 550, 185 N.W.2d p. 311, it was held that review of the revocation hearing could be obtained by certiorari issued by the court of conviction, and stated:

'. . . We further conclude that the scope of the review shall be addressed to whether the department's action was arbitrary and capricious and represented its will and not its judgment.

"The board is presumed to have had before it information which warranted the order of revocation, and its determination of the matter is conclusive unless the prisoner can prove by a preponderance of the evidence the board's action was arbitrary and capricious. That burden rests squarely on the prisoner, and if he fails to sustain the burden, the courts will not interfere with the board's decision. . . ."

At the parole revocation hearing, Cresci admitted that when arrested for the traffic violation on June 19, 1971, he gave the police officer a false name and address and that he had altered the driver's license he was using at the time. However, the record reflects that in recommendation for revocation, the examiner placed strong emphasis on the Sheboygan episode. Cresci also admitted that he left Milwaukee county without his parole agent's knowledge or consent and went to Sheboygan with his friends on June 25, 1971. It was impossible for him to deny this because he was arrested in Sheboygan the same day....