Stone v. Perrin, 7947
| Decision Date | 17 February 1978 |
| Docket Number | No. 7947,7947 |
| Citation | 382 A.2d 1112,118 N.H. 109 |
| Parties | Keith Jon STONE v. Everett I. PERRIN, Warden, New Hampshire State Prison. |
| Court | New Hampshire Supreme Court |
Keith Jon Stone, pro se.
David H. Souter, Atty. Gen. (Edward N. Damon, Asst. Atty. Gen., on the brief), for the State.
The issue is whether plaintiff was entitled to a hearing on the question of his reparole when he first became eligible to apply for a hearing before the parole board. Plaintiff's exceptions to the denial of his petition for a writ of habeas corpus were reserved and transferred by Cann, J.
Plaintiff was sentenced in 1972 to the New Hampshire State Prison for one to ten years on a charge of being an accomplice to armed robbery. He was paroled and set free on January 16, 1973. On March 23, 1973, he was arrested for rape and aggravated assault. His parole was revoked on the original crime after being convicted of the aggravated assault charge, for which he was sentenced to five to ten years to run concurrently with the robbery sentence. Plaintiff was transferred to the Cheshire County jail, from which he escaped on November 7, 1975. He was charged with escape, was convicted, and was sentenced to four to ten years to be served consecutively with the sentences he was then serving. Plaintiff became eligible to apply for a reparole hearing under the rules of the parole board (hereinafter board) on March 1, 1976. A successful reparole on the robbery sentence and an initial parole on the aggravated assault sentence would allow him to begin serving the sentence for escape, and thus hasten the time for parole consideration on that charge.
In July 1976, the board denied plaintiff's June 1976 request for reparole without giving him a hearing, but indicated it would be willing to review his case in six months at its December 1976 meeting and decide at that time whether to grant him a reparole hearing. This latter meeting was postponed, but on January 5, 1977, the board reviewed plaintiff's case and granted him a hearing that was to take place the following month. After the February hearing, the board granted his request for reparole. In April 1977, plaintiff filed a petition for writ of habeas corpus. He attacked the board's action and sought an order that his reparole should become effective as of March 1, 1976, the date on which he first could have requested a hearing, rather than February 24, 1977, the effective date set by the board.
Plaintiff's claim that the board violated his statutory rights under RSA 651:45 is deemed waived by his failure to raise and brief the issue on appeal. Ekco Enterprises, Inc. v. Remi Fortin, Inc., 118 N.H. ---, 382 A.2d 368 (January 23, 1978); Town of Derry v. Simonsen, 117 N.H. ---, 380 A.2d 1101 (December 16, 1977). The only issue briefed by the plaintiff is his claim that he was denied due process of law.
The threshold question, of course, is whether due process applies at this stage of the parole decision. If it does not, then we need not reach the question whether the procedure the board followed comports with the constitutional requirement of fundamental fairness. The Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), held that an individual free on parole whose parole is sought to be revoked has minimal due process rights. The Court ruled that "(w)hether any procedural protections are due depends on the extent to which an individual will be condemned to suffer grievous loss.' "...
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State v. Farrow
...702 (1963), its widespread use does not convert a matter of legislative grace into a fundamental right. Cf. Stone v. Perrin, 118 N.H. ---, 382 A.2d 1112 (1978). Because parole is not an interest that receives enhanced protection under the due process clause, the State need have only a ratio......
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...loss of a privilege once granted is clearly different from the denial of a privilege that has never been given." Stone v. Perrin, 118 N.H. 109, 111, 382 A.2d 1112, 1113 (1978); see Medina v. Rudman, 545 F.2d 244, 250 (1st Cir.1976), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 177 (......
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...the denial of a privilege not yet given must be distinguished from the loss of a privilege already granted, Stone v. Perrin, 118 N.H. 109, 111, 382 A.2d 1112, 1113 (1978), because one cannot have a property interest in a privilege before it is granted. See Board of Regents v. Roth, 408 U.S.......
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