                                              No.   84-547

                   I N THE SUPREME COURT O THE STATE O F M N A A
                                          F               OTN

                                                    1985




DANNE WILLIAM OWENS,

                       Petitioner,

    -vs-

HENRY RISLEY       ,
                       Respondent.




ORIGINAL PROCEEDING:



COUNSEL O RECORD:
         F



           For P e t i t i o n e r :

                       Conde F. Mackay, P u b l i c D e f e n d e r , Anaconda, Montana


           F o r Respondent:

                       Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                       K a r l N a g e l , Dept. of I n s t i t u t i o n s , H e l e n a , Montana




                                             Submitted:        A p r i l 9 , 1985

                                                Decided:       July 2 , 1985


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Filed:     ,   .




                                             Clerk
M r . J u s t i c e Frank B.        Morrison, Jr., d e l i v e r e d t h e Opinion o f
t h e Court.

        Defendant,          Danne W i l l i a m O w e n s ,        was c o n v i c t e d of         bur-

g l a r y and s e n t e n c e d t o t e n y e a r s a t t h e Montana S t a t e P r i s o n

on May 2 7 , 1981.            H e was p a r o l e d J u n e 23,           1983, on t h e c o n d i -

tion     that     he    e n t e r and c o m p l e t e      t h e L i g h t h o u s e Program a t

Galen S t a t e H o s p i t a l .       D e f e n d a n t e n t e r e d Galen on J u n e             27,

1983,     and     at    7:15     p.m.     t h a t e v e n i n g was           reported missing.

        Defendant's          supervising parole o f f i c e r issued a report

of   violation         on    July 5,       1983.           D e f e n d a n t was      subsequently

arrested        in     Bellevue,         Washington,              on      October         11,      1983.

Following        extradition,           defendant           was        returned          to   Montana

S t a t e P r i s o n on December 3 , 1983, and a f i n a l p a r o l e r e v o c a -

t i o n h e a r i n g was h e l d December 29,                  1983.      Defendant's parole

was r e v o k e d a t t h a t h e a r i n g .

        D e f e n d a n t f i l e d a p r o se p e t i t i o n          f o r a w r i t o f habeas

c o r p u s w i t h t h i s C o u r t on December 1 9 , 1984.                      The D e p a r t m e n t

of    Institutions           responded          on   January           23,       1985.        We    then

i s s u e d a n o r d e r on J a n u a r y 3 0 ,      1 9 8 5 , remanding t h i s c a s e t o

t h e Third J u d i c i a l D i s t r i c t Court f o r an e v i d e n t i a r y h e a r i n g

to   determine         if    petitioner          received          a     preliminary          on-site

hearing f o r parole violation, pursuant t o                                 §   46-23-1024,        MCA.

That     hearing       was     held     March        7,    1985.          A      stipulation         was

e n t e r e d i n t o by b o t h p a r t i e s s t a t i n g t h a t no s u c h p r e l i m i n a r y

on-site       hearing        had    been     held         and    that        defendant        had    not

waived h i s r i g h t t o s u c h a h e a r i n g .

        I n h i s p e t i t i o n f o r a w r i t o f h a b e a s c o r p u s and memoran-

dum i n s u p p o r t , d e f e n d a n t r a i s e s two b a s i c i s s u e s :

        1.    Whether d e f e n d a n t was w r o n g f u l l y d e n i e d a p r e l i m i -

nary     on-site       hearing       on t h e r e v o c a t i o n        of      h i s appeal;       and
        2.   Whether defendant was denied his due process rights
enunciated in Morrissey v. Brewer (1972), 408 U.S.                   471, 92
S.Ct.    2593, 33 L.Ed.2d      484, at his final revocation hearing?

        The State conceded that defendant received no prelimi-
nary on-site hearing.          However, the State contends that no

hearing was required because defendant had                  absconded from
supervision and was arrested in another jurisdiction where he
had no permission to be.           Since the fact of his arrest in
another jurisdiction established probable cause that Owens
had violated his parole (he obviously was not at the Light-
house Project in Galen), there was no need to hold a prelimi-
nary hearing on the issue of whether or not probable cause
existed.
        Regarding issue number two, the State contends first
that defendant was not constitutionally entitled to an attor-
ney, and second, that Owens was given every opportunity to
present evidence or witnesses on his behalf, but failed to do

SO.

        A preliminary on-site hearing was not necessary in this
situation.        The purpose of an on-site hearing is to "deter-
mine whether there is probable cause or reasonable ground to
believe that the arrested parolee has committed acts that
would    constitute a violation           of parole   conditions.          Cf.
Goldberg     v.    Kelly,   397   U.S.,     at   267-271,    90    S.Ct.    at
1020-1022, 25 L.Ed.2d at 287."            Morrissey v. Brewer, 408 U.S.
at 485, 92 S.Ct. at 2602, 33 L.Ed.2d               at 497.        The Eighth
Circuit has held        that    "where obtaining permission before
leaving the state is a condition of parole, a parolee's
presence in another state without such permission is suffi-
cient probable cause to believe he committed an act which
constituted a violation of his parole such that a preliminary
probable cause hearing is not required."            (Citation omitted.)
Chilembwe v. Wyrick (8th Cir. 1.978), 574 F.2d 985, 987.
        In a special concurrence to Chilembwe, supra, Judge Lay
raises an important issue.             He believes Morrissey to require
an on-site hearing in order to avoid:
          "the possibility of any mistake or misun-
          derstanding which might arise and the
          concomitant   hardship   resulting   from
          returning the parolee to prison.        A
          parolee may be able to show mitigating
          circumstances which would alter the
          initial decision to revoke the parole.
          For example, the inability to notify the
          officer of a dire emergency or some
          misunderstanding by the parolee or offi-
          cer might possibly be aired at the situs
          of arrest." Chilembwe, 574 F.2d at 987.
However, here defendant's presence in another state clearly
established probable cause that defendant had violated his
parole.        Not   only was     he   not   suppose to be   outside of
Montana, he was not suppose to be away from Galen State
Hospital.       He would have had no mitigating circumstance or
misunderstanding to voice at an on-site hearing.
     Regarding issue two, there is clearly no constitutional
right     to   counsel   at   a   final parole     revocation   hearing.
Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36

L.Ed.2d    656; Petition of Spurlock (1969), 153 Mont. 475, 458
P.2d 80; Petition of High Pine (1969), 153 Mont. 464, 457
P.2d 912.      However, the United States Supreme Court stated in
Gagnon, supra, that:
          "We think    ... that the decision as to
          the need for counsel must be made on a
          case-by-case basis in the exercise of a
          sound discretion by the state authority
          charged with responsibility for adminis-
          tering the probation and parole system.
          Although the presence and participation
          of counsel. will probably be both undesir-
          able and constitutionally unnecessary in
          most revocation hearings, there will
          remain certain cases in which fundamental
          fa irness--the    touchstone     of    due
          process--will require that the State
          provide at its expense counsel for
           indigent probationers o r parolees."                    411
           U . S . a t 7 9 0 , 9 3 S . C t . a t 1 7 6 3 , 36 L.Ed.2d
           a t 666.

        Montana l a w p r o v i d e s f o r s u c h a c a s e - b y - c a s e         determina-

tion.      A.R.M.      5 20.25.801 ( 4 ) s t a t e s :
           " I f n o t r e p r e s e n t e d by c o u n s e l , an i n d i -
           g e n t p a r o l e e may r e q u e s t s u c h , a n d a
           d e c i s i o n on t h e r e q u e s t w i l l b e r e n d e r e d
           by t h e board a f t e r due c o n s i d e r a t i o n . "

        Where,        as    here,      defendant          has     admitted         violating          a

condition of           parole      and     is capable of            speaking e f f e c t i v e l y

f o r h i m s e l f , t h e r e i s no a b u s e o f d i s c r e t i o n by t h e Board i n

refusing t o g r a n t defendant counsel.                          See Barton v.              Malley

(10th C i r .     1 9 8 0 ) , 626 F.2d       151, 158.

        Finally,        defendant         was      not     denied       an      opportunity          to

present h i s case.             D e f e n d a n t was a s k e d o n e q u e s t i o n , w h e t h e r

o r n o t h e had v i o l a t e d p a r o l e .          H e answered y e s .           The B o a r d

then     pronounced         that      defendant's          parole       would      be     revoked.

Defendant        subsequently            declined         the    opportunity           to     speak,

stating       that     he    would       wait     for     "a    court      of     law."        Since

defendant        admitted        violating a           condition of             h i s parole        and

declined        the    opportunity           to    defend       himself,         there        was    no

error.

        The r e v o c a t i o n o f d e f e n d a n t ' s p a r o l e i s a f f i r m e d .




W e concur:                /
