Varnson v. Satran

Decision Date22 May 1985
Docket NumberNo. 10787,10787
Citation368 N.W.2d 533
PartiesOwen VARNSON, Plaintiff and Appellant, v. Winston E. SATRAN, Warden of the North Dakota State Penitentiary, and the North Dakota Parole Board, Defendants and Appellees. Civ.
CourtNorth Dakota Supreme Court

Phillip J. Brown, Bismarck, for plaintiff and appellant.

Edwin F. Zuern, Sp. Asst. Atty. Gen., Bismarck, for defendants and appellees.


Owen Varnson appealed from a district court judgment denying his application for post-conviction relief. We affirm.

On November 3, 1983, Varnson, while serving a prison sentence, was searched by prison officials and marijuana was discovered. Varnson had returned to the State Farm from a work detail, and the marijuana was discovered in the pocket of a jacket Varnson carried from the van in which he and other inmates were returned to the State Farm. Varnson claimed that the jacket containing the marijuana belonged to another inmate, that he had grabbed it by mistake, and that he did not know the jacket contained marijuana when he carried it into the State Farm.

The matter was referred to the State Bureau of Criminal Investigation [BCI]. During the investigation, a BCI investigator asked Varnson if he would be willing to take a polygraph test. Varnson stated that he would, and that he would like to have one given to him prior to his scheduled appearance before the Parole Board on November 9, 1983.

At the Parole Board hearing, Varnson told the Board about the marijuana incident and that he would be taking a polygraph test in the near future. The Board issued the following order concerning Varnson:

"Eligible for parole March 1, 1984, to a satisfactory plan, PROVIDED the polygraph test exonerates inmate from any involvement in the drug incident at the NDSFarm. To serve out balance of sentence if polygraph test shows involvement in this crime."

Two polygraph tests were administered to Varnson and it was the polygraph operator's opinion that, during the second test, Varnson answered deceptively when questioned about his involvement in the marijuana incident.

On December 15, 1983, the prison Adjustment Committee found him guilty of violating a prison rule and recommended a loss of one month's "good time" and fifteen days in disciplinary segregation. Varnson's appeals to the Warden and the Director of Institutions were denied. In January 1984, Varnson again applied for parole. The Parole Board denied the request, stating:

"It was the decision of the Parole Board that they continue with their decision taken at the November 1983 Parole Board--that if you failed the polygraph test you are to serve out the balance of your sentence. PAROLE DENIED."

Varnson filed an application for habeas corpus relief with the United States District Court, which dismissed the application without prejudice for failure to exhaust State remedies. Varnson then filed an application in State court for post-conviction relief under Chapter 29-32, N.D.C.C., claiming, in essence, that it was a denial of his due-process rights for the penitentiary Adjustment Committee and the Parole Board to require him to submit to a polygraph examination and to rely solely on the results of the test in finding him guilty of the offense and in denying his request for parole.

Following a hearing at which all of the evidence introduced was documentary in nature, the district court found that the polygraph tests were "voluntary and not required by either the Penitentiary Adjustment Committee or the Parole Board," and that Varnson "showed an intention to rely upon the polygraph test." The court also found that:

"The polygraph result was only one of the factors relied upon by the Penitentiary Adjustment Committee, the Parole Board, and others in the appeal process. All the facts surrounding the incident and the investigation were considered."

The district court concluded that, under these circumstances, it was not a denial of Varnson's due-process rights for either the Adjustment Committee or the Parole Board to consider the results of the polygraph examination, with the other evidence, in arriving at their respective decisions. A judgment was entered dismissing the application for post-conviction relief, and Varnson appeals.

We have been informed that Varnson has been released from prison. The appellee contended during oral arguments that Varnson's claim is therefore moot.

A case is moot when a determination is sought which, when rendered, cannot have any practical legal effect upon a then-existing controversy. State ex rel. Clarke v. Carballo, 83 Wis.2d 349, 265 N.W.2d 285 (1978). See generally St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943); State v. Patten, 366 N.W.2d 459 (N.D.1985); Wahpeton Public School District v. North Dakota Ed. Ass'n, 166 N.W.2d 389 (N.D.1969); Schwarz v. Thoreson, 70 N.D. 552, 296 N.W. 420 (1941).

Varnson was sentenced to the State Penitentiary for a term of three years. The sentence further provides:

"18 months of said sentence to be suspended for a period of 3 years from date of release from incarceration. Supervised probation.

"Defendant to be considered for parole after serving 6 months."

Varnson's "date of release from incarceration" was delayed by several months as a result of the drug incident and the subsequent actions of the Adjustment Committee and Parole Board. Therefore, under the specific terms of his sentence, Varnson will remain subject to supervised probation for several months more than if he had been released from incarceration on an earlier date. During a period of probation, the State maintains some incidence of control over the probationer's conduct. See generally State v. Perbix, 331 N.W.2d 14 (N.D.1983). It cannot be said that a ruling in this case would have no "practical legal effect" on Varnson. We therefore conclude that the questions raised by Varnson in this appeal are not moot.

Varnson challenges the district court's finding that the polygraph results were only one of the factors relied upon by the Adjustment Committee, the Parole Board, and others in the appeal process. Varnson asserts that the Parole Board's written orders and other written communications between Varnson and prison officials establish that the Adjustment Committee and Parole Board relied solely on the results of the polygraph examination in finding that he committed the offense and in denying his March 1, 1984, parole-release date.

Post-conviction relief proceedings are civil in nature [see State v. Jensen, 333 N.W.2d 686 (N.D.1983) ], and all rules and statutes applicable in civil proceedings are available to the parties. Sec. 29-32-07, N.D.C.C.; State v. Lueder, 252 N.W.2d 861 (N.D.1977) [Rule 56, N.D.R.Civ.P., and decisions interpreting the rule are applicable in post-conviction proceedings]. We therefore conclude that in an appeal brought under the provisions of the Uniform Post-Conviction Procedure Act, a district court's findings of fact will not be disturbed unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P.; see Holmes v. State, 104 Idaho 312, 658 P.2d 983 (Ct.App.1983); Bartholomew v. Cupp, 13 Or.App. 436, 510 P.2d 355 (1973); State v. Duggan, 414 A.2d 788 (R.I.1980); Miller v. State, 338 N.W.2d 673 (S.D.1983). 1 However, this court has held that where the findings of the trial court rest solely upon documentary evidence, as distinguished from oral testimony, we are not bound by Rule 52(a), N.D.R.Civ.P., in reviewing those findings and are as capable of reading and understanding the documentary evidence as is the trial court. E.g., Krohnke v. Lemer, 300 N.W.2d 246 (N.D.1980); Dolajak v. State Auto. & Casualty Underwriters, 252 N.W.2d 180 (N.D.1977). But see Anderson v. City of Bessemer City, --- U.S. ----, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) [Rule 52(a), F.R.Civ.P., applicable to review of factual findings based entirely on physical or documentary evidence]. Whether or not we apply Rule 52(a) is inconsequential in this case because, under either standard of review, we agree with the district court's findings of fact.

Although the Parole Board's orders and some written communications between Varnson and prison officials suggest that the results of the polygraph examination were the sole determining factor, these documents must be viewed in light of the entire record. The record reflects that the Adjustment Committee held a hearing during which it considered, in addition to the polygraph-examination results, an incident report prepared by the prison employee who searched Varnson and discovered the marijuana, an investigative report of the incident prepared by a BCI officer, and Varnson's own statement about the incident. Bill Broer, Deputy Warden at the Penitentiary and chairman of the prison disciplinary committee, stated by affidavit that the committee "performed its own fact finding function with a formal hearing," and that "[b]ased upon the fact that he [Varnson] carried the jacket with the contraband controlled substance and indicated some knowledge of it coming in, along with the report of the State's Bureau investigation and the polygraph results, we found him guilty of violating our prison rule as charged." Broer stated that the polygraph test "simply added further proof to what the evidence revealed."

Varnson appeared at the Parole Board's November 1983 meeting and informed the Board members about the incident. When Varnson applied for parole in January 1984, the Board was presumably aware of the Adjustment Committee's previous action on the matter. James Marion, the Chief Parole Officer and Clerk of the Parole Board, stated by affidavit that the results of the polygraph test were among the factors considered by the Board in denying parole to Varnson, but that the test results did not necessarily influence the Board's decision to deny parole. Marion stated that there was sufficient evidence of Varnson's violation of the penitentiary rules to justify the...

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