State ex rel. Johnson v. Cady

Decision Date02 April 1971
Docket NumberNos. S,s. S
Citation185 N.W.2d 306,50 Wis.2d 540
PartiesSTATE ex rel. Robert Edward JOHNSON, a/k/a Yusuf Bin-Rella, Petitioner, v. Elmer O. CADY, Warden, Wis. State Prison, Respondent. STATE ex rel. Richard Louis BROCK, Petitioner, v. Elmer O. CADY, Warden, Wis. State Prison, Respondent. STATE ex rel. Michael A. MROTEK, Petitioner, v. Elmer O. CADY, Warden, Wis. State Prison, Respondent. tate 143--145.
CourtWisconsin Supreme Court

Three petitions for habeas corpus were heard together, pursuant to an order of this court directing the causes be consolidated by the state public defender.

In case number State 143, Robert Edward Johnson, a/k/a Yusuf Bin-Rella, petitioner, was convicted of armed robbery, in violation of sec. 943.32(1)(b), Stats., and sentenced to the Wisconsin state prison. He was subsequently granted what is generally referred to as mandatory parole pursuant to the provisions of sec. 53.11(7)(a). Mandatory parole is that parole which must be granted to a prisoner after he has served the term for which he was sentenced, less good time earned and not forfeited as provided by statute. Sec. 53.11(7) (b) provides that a prisoner on mandatory parole is subject to the same regulations while on parole as one who is granted discretionary parole, and as provided in sec. 57.06(3) and sec. 57.07(2). His parole was thereafter revoked, and petitioner now challenges the revocation of his parole without a hearing.

In case number State 144, Richard Louis Brock, petitioner, was convicted of forgery, in violation of sec. 943.38(1), Stats., and sentenced to a term of three years in the state reformatory; the execution of the setence was stayed and he was placed on probation, all pursuant to the provisions of sec. 57.01, Stats.1967, now sec. 973.09. His probation was revoked by the Department of Health & Social Services, as provided in Sec. 57.03(1), Stats.1967, now sec. 973.10(2), 1 and petitioner challenges the revocation of his probation without a hearing.

In case number State 145, Michael A. Mrotek, petitioner, was convicted of burglary, in violtion of sec. 943.10, Stats., and sentenced to the Wisconsin state prison. Petitioner was subsequently granted what is generally referred to as discretionary parole, pursuant to the provisions of sec. 57.06(1)(a). Discretionary parole may be granted to a prisoner, subject to statutory provisions, when he has served the minimum sentence as defined by statute. His parole was thereafter revoked and petitioner now challenges the revocation without a hearing.

James H. McDermott, State Public Defender, Madison, for petitioners.

Robert W. Warren, Atty. Gen., William A. Platz and Mary V. Bowman, Asst. Attys. Gen., Madison, for respondent.


The principal issues presented are:

1. Petitioner's right to a hearing at revocation. 2. Equal protection, in that a different procedure is provided for probation revocation in Milwaukee county than the remainder of the state.

3. If petitioner has a right to a hearing, does he also have a right to counsel?

4. Retroactivity.

For the resolution of the issues here presented, we find no substantial difference between the three situations presented, i.e., revocation of parole of a prisoner released on mandatory parole, discretionary parole, or a criminal on probation as a result of sentence having been imposed and stayed. In each of the three situations, the petitioners have been convicted and sentence imposed, and they are in the custody and control of the Department of Health & Social Services, (H & SS Department).


We start with the proposition that a person once convicted of a crime has no constitutional right to probation 2 or parole. Any rights that one convicted of a crime has to be on probation or parole, are rights which have been created by the legislature. The legislature having enacted laws which make it possible for certain individuals who have been convicted of crimes to be placed either on probation or granted parole, has vested the administration of such matters in the executive branch of the government by directing that the H & SS Department shall administer parole and probation matters.

Sec. 46.03, Stats., 'Department, powers and duties.

The department shall:

'* * *.

'(6) Corrections. * * *

'(c) Administer parole and probation matters.'

Thus the litigation is over and the judicial process terminated when a man, once presumed to be innocent, has been accused of a crime, tried, defended, found guilty, sentenced and, if he wishes, gone through the process of appeal. The adversary system has terminated and the administrative process, vested in the executive branch of the government, directed to the correctional and rehabilitative processes of the parole and probation system has been substituted in its place.

When establishing the probation and parole system, the legislature, except as to Milwaukee county, clearly did not adopt statutes providing for a hearing on the revocation of probation if sentence has previously been imposed and stayed.

Sec. 973.10(2), Stats.1969, formerly sec. 57.03(1), Stats.1967, provides:

'If a probationer violates the conditions of his probation, the department may order him brought before the court for sentence which shall then be imposed without further stay or if he has already been sentenced, may order him to prison; * * *.'

Petitioner challenges this procedure contending that due process requires a hearing as to any proposed revocation of probation.

Also, as to parole revocation, the statutes make no provision for a hearing. Both mandatory release, pursuant to sec. 53.11(7)(a), Stats., and discretionary parole pursuant to sec. 57.06(1), may be revoked by order of the department. Sec. 53.11(7)(b), applicable to mandatory release, provides:

'Any person on parole under this subsection may be returned to prison as provided in s. 57.06(3) or s. 57.07(2) to serve the remainder of his sentence.'

Sec. 57.06(3), applicable to discretionary parole, provides:

'Every paroled prisoner remains in the legal custody of the department unless otherwise provided by the department. All prisoners under its custody may be returned to prison at any time, on the order of the department, * * *'

In Escoe v. Zerbst (1935), 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566, the petitioner challenged the revocation of his probation without a hearing. The court held that under the applicable federal statute, the petitioner's probation could not be revoked without a hearing, but rejected the petitioner's contention that a hearing was constitutionally required.

'In thus holding we do not accept the petitioner's contention that the privilege has a basis in the Constitution, apart from any statute. Probation or suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions in respect of its duration as Congress may impose. * * *' Escoe v. Zerbst, supra, pp. 492, 493, 55 S.Ct. p. 819.

The conflicting decisions in other jurisdictions, both before and after the decision in Escoe v. Zerbst, supra, on whether due process requires a hearing on revocation of probation and parole are discussed in an annotation at 29 A.L.R.2d 1074.

After review of conflicting authority in other jurisdictions, and consideration of all arguments advanced by respective counsel, we conclude that the 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. Hahn v. Burke (7th Cir. 1970), 430 F.2d 100. 3 We recognize that legally petitioners are in the custody of the department whether confined in a penal institution or at liberty on either probation or parole. Nevertheless, it cannot be denied that there is a significant distinction between the status and freedom enjoyed by one on probation or parole and one confined in a penal institution. After one has gained the conditional freedom of a probationer or parolee, whether by action of court, parole board, or statute, the state cannot summarily revoke such status without giving petitioner a reasonable opportunity to explain away the accusation that he had violated the conditions of his probation or parole. Upon the granting of probation or parole, the convict is entitled to conditional liberty and is possessed of a right which can be forfeited only by reason of a breach of the conditions of the grant. Chase v. Page (Okl.Cr.1969), 456 P.2d 590, 594. In holding that probationers and parolees are entitled to a hearing, we do not imply that they could not be detained on recommendation of the department where circumstances require and a hearing was not immediately possible. Hahn v. Burke, supra. 3a

We do not here attempt to spell out in detail the specific procedural characteristics of the revocation hearings to be held by the department. The type of hearing we refer to is a factual hearing relating to the grounds of revocation so that, on review, it can be determined whether the department acted arbitrarily and capriciously in ordering revocation. 3b

In examining authorities in other jurisdictions, it appears there is little uniformity in the cases in discussing the type of hearing required. We are of the opinion that the hearing need not be a formal trial-type hearing and that technical rules of evidence need not be observed.

'A revocation hearing is not a trial in the traditional sense, nor is the board necessarily concerned with the commission of a criminal offense. As a matter of fact, a prisoner having been granted conditional freedom on parole, the primary question before the board is whether within its discretion the parolee is still a good parole risk. * * * By its very nature a revocation hearing does not envision strict observance of technical rules of law and procedure accorded a judicial proceeding. Any...

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