Turman v. Buckallew

• Decision Date: 18 December 1989
• Docket Number: 88SA477,Nos. 88SA235,s. 88SA235
• Parties: Harold TURMAN, Plaintiff-Appellant, v. Larry BUCKALLEW, Sheriff of Pueblo County, Defendant-Appellee. Harold Dean TURMAN, Petitioner, v. Thomas I. COOPER, Superintendent, Four Mile Modular Units, Walter L. Kautzky, Executive Director, Colorado Department of Corrections, and Colorado State Board of Parole, Respondents.
• Court: Colorado Supreme Court

Page 774

784 P.2d 774

Harold TURMAN, Plaintiff-Appellant, v. Larry BUCKALLEW, Sheriff of Pueblo County, Defendant-Appellee.

Harold Dean TURMAN, Petitioner, v. Thomas I. COOPER, Superintendent, Four Mile Modular Units, Walter L. Kautzky, Executive Director, Colorado

Department of Corrections, and Colorado

State Board of Parole, Respondents.

Nos. 88SA235, 88SA477.

Supreme Court of Colorado En Banc.

Dec. 18, 1989.

As Modified on Denial of Rehearing Jan. 16, 1990.

David F. Vela, Colorado State Public Defender, Jaydee K. Bachman, Deputy State Public Defender, Denver, for plaintiff-appellant in no. 88SA235.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert Petrusak, Asst. Atty. Gen., Appellate Section, Denver, for defendant-appellee in no. 88SA235.

Harold D. Turman, Canon City, pro se. in no. 88SA477.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert C. Ripple, Asst. Atty. Gen., Human Resources Section, Denver, for respondents in no. 88SA477.

Justice MULLARKEY delivered the Opinion of the Court.

In this case, we have consolidated two appeals brought by Harold Turman regarding two separate district court judgments denying his petitions for writs of habeas corpus. In Turman v. Buckallew, he appeals from the Pueblo County District Court's denial of his application for a writ of habeas corpus. The district court in Buckallew denied habeas corpus relief, after an evidentiary hearing. It found that Turman's parole revocation hearing was held within the statutory time limit and that the administrative law judge had not abused his discretion by denying Turman's request for appointed counsel. We affirm the district court's order although we employ a different analysis.

The second case brought by Turman, entitled Turman v. Cooper, is a pro se appeal from the District Court of Fremont County's dismissal of Turman's petition for writ of habeas corpus. The district court reviewed the petition on the pleadings and dismissed it. We disagree with the reasoning of the district court but we affirm its order of dismissal.

We consider both cases as appeals from the denials of Crim.P. 35(c) motions. We have held previously that a habeas corpus petition which seeks relief available under Crim.P. 35 should be treated as a Crim.P. 35 motion based upon "the substantive constitutional issues raised therein, rather than [upon] the label placed on the pleading." White v. Denver Dist. Court, 766 P.2d 632, 634 (Colo.1988) (quoting Dodge v. People, 178 Colo. 71, 73, 495 P.2d 213, 214 (1972)). Appropriate grounds for post-conviction relief pursuant to Crim.P. 35 include allegations that the defendant's sentence was imposed in violation of the constitution or laws of the United States or Colorado or that there has been an unlawful revocation of parole. Crim.P. 35(c)(2)(I) & (VII); White, 766 P.2d at 635; see also People v. Turman, 659 P.2d 1368, 1370 (Colo.1983). Thus, we conclude that the Pueblo and Fremont County District Courts should have treated Turman's habeas corpus petitions as Crim.P. 35(c) motions for post-conviction relief. See also Blevins v. Tihonovich, 728 P.2d 732, 733 (Colo.1986) ("[h]abeas corpus relief is generally not available unless other relief is unavailable"). In the interest of judicial economy, we have elected to retain jurisdiction of Turman's appeals although jurisdiction of an appeal from a Crim.P. 35(c) motion is properly vested in the court of appeals. § 13-4-102(1), 6A C.R.S. (1987); White, 766 P.2d at 634 n. 6; Blevins, 728 P.2d at 733-34.

I.

Both of Turman's appeals concern the revocation of his parole in 1986. Turman was on parole from the Colorado Department of Corrections when he violated a condition of his parole by voluntarily leaving the state. On February 18, 1986, Colorado issued a warrant for his arrest and he was arrested in California on April 11, 1988. Turman did not waive extradition until April 28. Subsequently, he was returned to Colorado on May 10 and served with the parole revocation warrant on May 11. While being held in the Pueblo County jail for the alleged parole violation, Turman pled guilty, on May 17, to a charge of fraud by check. He immediately was sentenced to, and began serving, a one year term in the Pueblo County Jail. At Turman's parole revocation hearing on June 2, 1988, he objected to the parole board's jurisdiction and requested an attorney to represent him. Turman's request for an attorney was denied after the administrative law judge conducted an extensive interview with him. Following the hearing, Turman's parole was revoked.

Turman filed a pro se petition for habeas corpus relief in Pueblo County District Court on May 25, 1988. Counsel from the Public Defender's office was appointed to represent him and an amended petition for writ of habeas corpus was filed on June 20, 1988. Turman alleged that the following reasons justified his immediate release: (1) the parole board lacked jurisdiction because his parole revocation hearing was not held within the statutorily-mandated thirty day time limit; (2) he was unlawfully denied counsel at his parole revocation hearing; (3) the parole board failed to follow the statutory procedures to be used in notifying a defendant of the board's decision; ¹ and (4) he had been held without bond since April 28, 1988.

On July 1, 1988 the district court held a hearing on Turman's petition for writ of habeas corpus. The court ruled that Turman's parole had been lawfully revoked and that the thirty day requirement of section 17-2-103(7), 8A C.R.S. (1988 Cum.Supp.) began to run on May 11, 1988 which was the day that he was served with the parole violation warrant. The court also ruled that there was no showing that the administrative law judge abused his discretion in denying appointed counsel. Turman then appealed to this court from the trial court's ruling discharging his writ of habeas corpus and refusing to reinstate parole.

Following the Pueblo District Court's denial of habeas corpus relief, Turman was transferred to Fremont County to begin serving his sentence at a state correctional facility. Turman then filed a second petition for writ of habeas corpus in Fremont County District Court on September 20, 1988. When the trial court did not act on his petition, Turman petitioned this court for a writ of mandamus ordering the court below to hold a hearing pursuant to his petition. On December 1, 1988, we denied the petition for writ of mandamus without prejudice to the right to reapply if the district court failed to rule on the motion for habeas corpus within fifteen days. On December 12, the district court issued an order of dismissal without a hearing. It held that Turman was lawfully confined, that he had failed to state a cause of action upon which relief can be granted, and that, since Turman's complaints primarily concerned improper actions of the parole board, the Administrative Procedure Act rather than a writ of habeas corpus was the proper vehicle for relief. Turman petitioned this court for habeas corpus relief under C.A.R. 21, and we entered an order stating that we would consider his motion as an appeal from the denial of a Crim.P. 35(c) motion.

We first will address the issues raised on appeal in the Pueblo habeas corpus action, Turman v. Buckallew: (1) whether Turman's parole revocation hearing was held within the thirty day time limit mandated by section 17-2-103(7), and (2) whether Turman was entitled to assistance of counsel at his parole revocation hearing. In Part IV of this opinion, we will discuss the Fremont habeas corpus action, Turman v. Cooper.

II.

Turman argues that his arrest in California on April 11, 1988 triggered the start of the thirty day requirement of section 17-2-103(7) for the commencement of his parole revocation hearing. Consequently, according to his argument, the hearing was held too late and the parole board did not have jurisdiction to act on June 2 when it revoked his parole. For the reasons discussed below, we reject this argument and hold that Turman was "arrested" within the meaning of the statute when he was returned to the custody of Colorado authorities. Under the facts of this case, the thirty days began to run on May 10, 1988, when he was delivered to the Pueblo County Jail. ² Thus, the hearing held on June 2 was within the thirty day requirement.

We have characterized parole as a "privilege," and have stated that no prisoner is entitled to parole as a matter of right. See In re Question Concerning State Judicial Review of Parole Denial, 199 Colo. 463, 465, 610 P.2d 1340, 1341 (1980). The decision of the parole board to grant or deny parole is discretionary and is not subject to judicial review. However, we do have power to review the parole board's actions when it has failed to exercise its statutorily imposed duties. Id.

An alleged parole violator "is not entitled to a speedy public trial pursuant to the Sixth Amendment, but is entitled to a fair hearing for purpose of ascertaining whether or not he has violated his parole." Hutchison v. Patterson, 267 F.Supp. 433, 434 (D.Colo.1967). See also Martinez v Patterson, 429 F.2d 844 (10th Cir.1970), cert. denied 402 U.S. 934, 91 S.Ct. 1528, 28 L.Ed.2d 868 (1971) (specific constitutional safeguards of counsel, witnesses, evidence, confrontation, cross-examination and compulsory process are not required at state parole revocation hearings). Furthermore, when the revocation hearing is not held within the statutory time period, the proper sanction for violation of the statute is a temporary release from custody. The parole violation complaint is not dismissed and the parole board does not lose jurisdiction to revoke parole. Cf. People v. Clark, 654 P.2d 847, 848 (Colo.1982) (applying same reasoning to probation revocation).

The statute governing parole revocation hearings in Colorado, § 17-2-103(7), 8A C.R.S. (1989...