State ex rel. Gillard v. Cook

• Decision Date: 29 September 1975
• Citation: 528 S.W.2d 545
• Parties: STATE of Tennessee ex rel. Willie GILLARD et al., Appellants, v. Howard G. COOK et al., Appellees.
• Court: Tennessee Supreme Court

Page 545

528 S.W.2d 545

STATE of Tennessee ex rel. Willie GILLARD et al., Appellants, v. Howard G. COOK et al., Appellees.

Supreme Court of Tennessee.

Sept. 29, 1975.

G. Gordon Bonnyman, Jr., Legal Services of Nashville, Inc., Nashville, Adrienne E. Volenik, St. Louis, Mo., for appellants.

R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, for appellees.

OPINION

FONES, Chief Justice.

This case presents two (2) issues: (1) Whether a juvenile is entitled to counsel at every probation revocation hearing; (2) Whether the standard of proof in juvenile probation revocation hearings should be 'beyond a reasonable doubt' or by a 'preponderance of the evidence.'

Willie Gillard, the Petitioner below, was found delinquent by a juvenile court on a date uncertain but no later than January, 1973, and was committed to a juvenile institution. He was then released on home placement status ¹ (commonly called 'aftercare' under prior law ²) in April, 1973.

On May 9, 1974, this home placement status was terminated without a hearing by an Ex parte order of the Juvenile Court of Shelby County, and the Petitioner was returned to a juvenile institution. The named Petitioner filed a writ of habeas corpus and class action on September 24, 1974, challenging the revocation procedures. The State conceded that Petitioner's revocation of home placement without a hearing was unconstitutional in view of the recent decisions in 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). As the law at that time was silent as to the procedure to be followed in the revocation of juvenile probation, the Chancellor, in his order of February 20, 1975, approved procedures to be followed in revocation proceedings as stipulated between Petitioner and State. Subsequent to that order the Tennessee Legislature amended T.C.A. § 37--237 and set by statute the juvenile probation revocation procedures to be followed in this State. Public Acts 1975, ch. 326, § 3. It should be noted that even though the procedures followed in the juvenile court system were revised by Public Acts 1975, ch. 326, §§ 1--7, the two issues presented in this appeal are not affected by that revision.

The learned Chancellor held that a juvenile has a right to counsel at all home placement revocation hearings, and that the proper standard of proof to determine whether Petitioner violated the conditions of his home placement status is 'preponderance of the evidence', rather than 'beyond a reasonable doubt.'

Petitioner and State appeal from the Chancellor's decree.

I.

In his argument that the right to counsel is required in every home placement revocation hearing, Petitioner's main thesis is that the revocation of home placement is merely a continuation of the original proceeding against the juvenile defendant which led to a finding of delinquency and subsequent imprisonment. This is so, the argument continues, because juveniles are not sentenced to a definite period of imprisonment in months or years; thus, when the juvenile is released on home placement, he no longer owes the state any remaining time on the original sentence. Consequently, any future re-imprisonment would constitute an imposition of a new sentence of imprisonment rather than the re-instatement of a previously assessed, but temporarily suspended, sentence. Therefore, Petitioner strongly argues that the holding of Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) ³ is controlling, and that the right to counsel attaches at every home placement revocation hearing.

We disagree.

The hybrid and somewhat peculiar functions of our juvenile court system require that a juvenile not be sentenced to a set number of years imprisonment; rather, the juvenile is sentenced to an indefinite term so that he may be released on home placement as soon as he is rehabilitated. Thus, the minimum sentence is an indefinite one. T.C.A. §§ 37--237, 37--437.

The maximum sentence for a juvenile, however, is a definite term of years; that is, the juvenile court may not sentence a juvenile under its jurisdiction to a term of imprisonment which would extend beyond his twenty-first (21st) birthday. T.C.A. §§ 37--203(c), 37--437. This juvenile sentencing structure is comparable to the Tennessee Indeterminate Sentence Act, T.C.A. § 40--2707, which has been in effect in this state since 1913. Public Acts, 1913, ch. 8, § 1.

We reject the idea that a juvenile released on home placement status no longer owes the state any remaining time on the original sentence just as we would reject that proposition if raised on behalf of an adult sentenced under T.C.A. § 40--2707. It is true that the juvenile does not owe the state any more time in Institutional custody if he complies with the terms of his home placement, but he still owes the state time in his home placement status. A revocation of home placement is not in any sense a new finding of delinquency with a new and indefinite commitment; rather, it is merely a finding of a violation of the conditions of his home placement with a return to imprisonment under the original sentence.

This situation is governed by the holding of Gagnon v. Scarpelli, supra, where the adult defendant was first found guilty, sentenced, and then placed on probation. His probation was later revoked at a revocation hearing, and he was returned to prison to serve the remainder of his sentence. In that case the Court extended the right of counsel to alleged probation violators appearing before a probation revocation board if the probationer makes a request for counsel:

'. . . based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.'

411 U.S. at 790, 93 S.Ct. at 1764

Additionally the Court noted that in doubtful cases it should also be considered '. . . whether the probationer appears to be capable of speaking effectively for himself.' 411 U.S. at 791, 93 S.Ct. at 1764. We find this to be especially applicable to juveniles because of the age, maturity, and level of articulative development of children faced with proceedings in juvenile court.

The critical distinction between Mempa and Gagnon is that in Mempa, the revocation process was interwoven with the deferred sentencing process, while in Gagnon only the post-adjudicatory probation revocation was at issue.

In the situation presented by the case Sub judice, the sentencing process has been completed and is not involved in a subsequent administrative hearing to determine whether to revoke home placement. Thus, the presence of counsel is not mandated at every hearing at which home placement could be terminated. The juvenile judge must consider each case on its merits, utilizing the criteria specified in Gagnon v. Scarpelli, supra, 411 U.S. at 790, 791, 93 S.Ct. 1756 to determine whether the...