State v. Hewett

• Decision Date: 24 May 1967
• Docket Number: No. 674,674
• Parties: STATE, v. John Henry HEWETT.
• Court: North Carolina Supreme Court

Page 476

154 S.E.2d 476

270 N.C. 348

STATE, v. John Henry HEWETT.

No. 674.

Supreme Court of North Carolina.

May 24, 1967.

Atty. Gen. T. W. Bruton and Staff Atty. Theodore C. Brown, Jr., for the state.

J. B. Lee, Jr., Whiteville, for defendant appellant.

PARKER, Chief Justice.

Defendant through his counsel, Mr. Lee, assigns as error that Judge Carr failed to appoint counsel to represent defendant, an indigent, at the hearing before him, though the defendant had requested counsel, and that his failure to do so was a flagrant abuse of discretion. This assignment of error is overruled.

Ordinarily, the Supreme Court will not consider questions not properly presented by objections duly made, exceptions duly entered, and assignments of error properly set out, though it may do so in exceptional circumstances in the exercise of its supervisory and controlling jurisdiction over the proceedings of the other courts vested in it by Article IV, section 10(1), of the North Carolina Constitution. To clarify an important question of practice frequently arising in the trial courts of this State, this Court, by virtue of the constitutional supervisory and controlling power vested in it over the other courts, deems it appropriate to consider defendant's assignment of error, as if an exception had been noted in apt time by defendant. In re Renfrow, 247 N.C. 55, 100 S.E.2d 315; 1 Strong's N.C. Index, Appeal and Error, §§ 2, 19, and Supplement thereto.

A person convicted of crime is not given a right to probation by the United States Constitution. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932); Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935); Brown v. Warden, U.S. Penitentiary, 351 F.2d 564 (7th Cir. 1965); Welsh v. United States, 348 F.2d 885 (6th Cir. 1965); Gillespie v. Hunter, 159 F.2d 410 (10th Cir. 1947); Jones v. Rivers, 338 F.2d 862 (4th Cir. 1964); Bennett v. United States, 158 F.2d 412 (8th Cir. 1946); Shum v. Fogliani, Nev., 413 P.2d 495 (1966).

Probation or suspension of sentence comes as an act of grace to one convicted of crime. Escoe v. Zerbst, supra. The rights of an offender in a proceeding to revoke his conditional liberty under probation are not coextensive with the Federal constitutional rights of one on trial in a criminal prosecution. Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963); Richardson v. Markley, 339 F.2d 967 (7th Cir. 1965); Brown v. Warden, U.S. Penitentiary, supra; Jones v. Rivers, supra.

In Welsh v. United States, supra, defendant pleaded guilty to various Federal offenses. He was not sentenced at the time the pleas were entered. Later, he appeared in court in person and by counsel, at which time imposition of sentences was suspended and he was placed on probation for a period of five years in each case. At a later hearing probation was revoked and the sentences were imposed. On 5 June 1964 defendant filed a motion to vacate the sentences, the district judge denied the motion without a hearing, and an appeal followed. The court said in part:

'Petitioner also contends that he was deprived of his constitutional right to assistance of counsel at the hearing when probation was revoked. In addition to the fact that petitioner made no request for counsel at that hearing, the constitutional right to the assistance of counsel in the defense of a criminal prosecution, given by the Sixth Amendment, does not apply to a hearing on a motion to revoke probation. Bennett v. United States, 158 F.2d 412, 415, C.A.8th, cert. denied, 331 U.S. 822, 67 S.Ct. 1302, 91 L.Ed. 1838; Gillespie v. Hunter, 159 F.2d 410, 411, C.A.10th; United States v. Huggins, 184 F.2d 866, 868, C.A.7th; Crowe v. United States, 175 F.2d 799, 801 C.A.4th, cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586, rehearing denied, 339 U.S. 916, 70 S.Ct. 559, 94 L.Ed. 1341; Richardson v. United States, 199 F.2d 333, 335 C.A.10th; Cupp v. Byington, 179 F.Supp. 669, 670, S.D.Ind. See: Gilpin v. United States, 265 F.2d 203, and cases cited at p. 204, C.A.6th; Barker v. State of Ohio, 330 F.2d 594, and cases cited, C.A.6th.

'Judgment affirmed.'

To the same effect Jones v. Rivers, supra.

A person convicted of crime is not given a right to probation under the North Carolina Constitution. G.S. § 15--197 provides in relevant part: 'After conviction or plea of guilty or nolo contendere for any offense, except a crime punishable by death or life imprisonment, the judge of any court of record with criminal jurisdiction may suspend the imposition or the execution of a sentence and place the defendant on probation * * *.' Probation relates to judicial action taken before the prison door is closed, whereas parole relates to executive action taken after the door has closed on a convict. G.S. § 15--199 provides, among other things, that as a condition of probation the probationer shall 'avoid injurious or vicious habits.' G.S. § 15--200.1 provides in relevant part: Upon its findings of fact that a valid condition of probation was willfully violated, the Superior Court shall enforce the judgment of the lower court, with an exception not pertinent here. Whether defendant has violated valid conditions of probation is not an issue of fact for a jury, but is a question of fact for the judge to be determined in the exercise of his sound discretion. State v. Robinson, 248 N.C. 282, 103 S.E.2d 376.

When a person accused of crime has been tried, defended, sentenced, and, if he desires, has exhausted his rights of appeal, the period of contentious litigation is over. Although revocation or probation results in the deprivation of a probationer's liberty, the sentence he may be required to serve is the punishment for the crime of which he had previously been found guilty. The inquiry of the court at such a hearing is not directed to the probationer's guilt or innocence, but to the truth of the accusation of a violation of probation. The crucial question is: Has the probationer abused the privilege of grace extended to him by the court? When a sentence of imprisonment in a criminal case is suspended upon certain valid conditions expressed in a probation judgment, defendant has a right to rely upon such conditions, and as long as he complies therewith the suspension must stand. In such a case, defendant carries the keys to his freedom in his willingness to comply with the court's sentence.

A proceeding to revoke probation is not a criminal prosecution, and we have no statute in this State requiring a formal trial in such a proceeding. Proceedings to revoke probation are often regarded as informal or summary. The courts of this State recognize the principle that a defendant on probation or a defendant under a suspended sentence, before any sentence of imprisonment is put into effect and activated, shall be given notice in writing of the hearing in apt time and an opportunity to be heard. State v. Duncan, N.C., 154 S.E.2d 53, and cases cited. Upon a hearing of this character, the court is not bound by strict rules of evidence, and the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt. State v. Robinson, supra; State v. Morton, 252 N.C. 482, 114 S.E.2d 115; State v. Brown, 253 N.C. 195, 116 S.E.2d 349; Supplement to 1 Strong's N.C. Index, Criminal Law, § 136.

All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended. Judicial discretion implies conscientious judgment, not arbitrary or willful action. It takes account of the law and the particular circumstances of the case, and 'is directed by the reason and conscience of the judge to a just result.' State v. Duncan, supra; Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520, 526; State v. Robinson, supra; State v. Morton, supra; State v. Brown, supra.

G.S. § 15--4.1 is not applicable, for the simple fact that it applies to the appointment of counsel for indigent defendants in criminal trials. It does not apply to the appointment of counsel for indigent defendants in a proceeding to revoke probation.

Decisions concerned with the constitutional right to counsel of an accused at various stages of criminal prosecutions are not controlling. Cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

We do not find in the United States Constitution or in the North Carolina Constitution any constitutional right to counsel for a defendant in a proceeding to revoke probation. We find no statute in this State giving a defendant the right to counsel in such a proceeding. The difference between hearings as to whether probation shall be revoked and criminal trials is so great that procedural requirements in criminal trials, such as the right to counsel, ought not to be imposed in absolute terms in hearings to revoke probation. A possible extension to hearings upon whether probation should be revoked of an absolute and universal requirement of counsel at every such hearing ought not to be taken without a legislative determination of the impact of such a requirement on the probation system.

This is said in 24 C.J.S. Criminal Law § 1618(11) d (d) p. 917, in respect to representation by counsel in a hearing to revoke probation: 'It is not required that the probationer be represented by counsel at the hearing, or that he be informed that he had a right to counsel, although under some statutes he is entitled to be represented by counsel.' A number of cases are cited in support of the test. In accord: State v. Edge, 96 Ariz. 302, 394 P.2d 418; People v. Wimberly, 215 Cal.App.2d 538, 30 Cal.Rptr. 421; Shum v. Fogliani, supra; Kennedy v. Maxwell, 176 Ohio St. 215, 198 N.E.2d 658.

Defendant assigns as error that there...