                                No. 85-293
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                IN THE SUPREME COURT OF THE STATE OF MONTANA



                                   No. 85-293
STATE OF MONTANA,
                 Plaintiff and Respondent,
         -vs-
MICHAEL HOWELL,
                 Defendant and Appellant.


                                   No. 85-399
IN THE MATTER OF
MICHAEL HOWELL,
              Petitioner,


HENRY RISLEY, Warden, Montana
State Prison,
              Respondent.



APPEAL FROM:     District Court of the Twentieth Judicial District,
                 In and for the County of Sanders,
                 The Honorable C.B. McNeil, Judge presiding.
COUNSEL OF RECORD:
         For Appellant/Petitioner:
                 Thomas Alan Kragh, Polson, Montana
         For Respondent:
                 Hon. Mike Greely, Attorney General, Helena, Montana
                 Joe R. Roberts, Asst. Attorney General, Helena
                 Claude Burlingame, County Attorney, Thompson Falls,
                 Montana



                                     Submitted on Briefs: April 4, 1986
                                      Decided: June 19, 1986

         JuN i 3 1986
Filed:
                              OPINION AND ORDER


Mr. Justice John C.           Sheehy delivered the Opinion of the
Court.


      Michael Howell petitioned this Court                     for a writ of
habeas     corpus    in Cause No.           85-399.        Howell claims his
imprisonment is unlawful              because     he was       not provided     a
preliminary on-site hearing as required by 5 46-23-1103, MCA,
and   the    due    process       clauses    of   the      federal    and   state
constitutions.
      We    remanded to the District Court of the Twentieth
Judicial     District,        Sanders      County,      for    an    evidentiary
hearing.     We also stayed petitioner's related appeal in Cause
No. 85-293 until final judgment is entered on the writ of
habeas corpus.        The evidentiary hearing was held before the
Hon. C. B. McNeil, who filed findings of fact and conclusions
of law with this Court.
      Michael       Howell     was     convicted      of      four    counts   of
aggravated       assault     in     Sanders County         District    Court   on
January 19, 1984.       He was given a 20 year suspended sentence,
and placed on probation in Montana.                     In April, 1984, his
probation was transferred to Sandpoint, Idaho, pursuant to
the Uniform Act for Out-of-State Parolee Supervision in 5
46-23-1101, MCA, et seq.
      On    September      19,      1984, Howell      assaulted       his   wife.
Howell     was     arrested    by    the    Sandpoint       Police    Department
pursuant to an agent's warrant issued by his Idaho probation
officer charging him with violation of his probation.                          On
September 21, 1984, Howell's Idaho probation officer sent a
Special Report to Montana which recommended Montana take
immediate action to revoke probation and. sentence Howell.
     On September 25, the agent's warrant was lifted and the
Idaho deputy        prosecuting     attorney   file a   charge against
Howell for aggravated battery.               On September 26, he was
arraigned in Idaho for aggravated battery.               Meanwhile, on
October 1, 1984, Montana authorities filed a petition to
revoke probation.         On October 1, Howell was transported to
the state line by Idaho authorities and retaken by Montana
authorities.       Upon his arrival in Montana, Howell's Montana
probation officer authorized a probation violation hold on
Howell.     The next day District Jud.ge Wheelis issued a bench
warrant for Howell's arrest for probation violations.                   On
October 23, he was arraigned for the probation violations.              A
hearing on the petition was held on January 22.                    It was
adjourned    until    February      5   to   secure the attendance of
witnesses.       On February 11, District Judge McNeil entered his
findings of        fact and conclusions of law.          On March      12,
Howell's probation was revoked and he was sentenced to serve
20 years.     After his probation was revoked in Montana, Idaho
dropped the aggravated battery charges against Howell.
     Petitioner contends he was denied due process because he
was not given a preliminary hearing in Idaho before he was
returned    to     Montana   as   required by     Morrissey   v.    Brewer
(1972), 408 U.S.          471, 92 S.Ct.      2593, 33 L.Ed.2d      484 and
Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36
L.Ed.2d     656.     He    argues       46-23-1103, MCA, requires a
probationer be given an on-site hearing before he is returned
to the sending state, and that the failure to do so means he
should be reinstated on parole.                The State distinguishes
Morrissey and argues that Howell was accorded fundamental
fairness.
        When Howell filed his petition for habeas corpus with
this Court, we remanded the same to the District Court,
Twentieth Judicial District, Sanders County, for hearing on
the fact issues raised by the petitioner in his petition for
habeas corpus relief.          We requested the District Court to
prepare     and   file   its    written         findings    of    fact    and
recommendation for disposition of the petition.                  At the same
time we denied petitioner's motion for reasonable bail and
stayed his appeal in Cause No. 85-293 until the further order
of this Court.
        The District Court held a hearing, and prepared findings
of fact and a recommendation which it did return to us.                    It
found     facts   substantially       as   we    have   reported     in   the
foregoing recitation.
        The District Court recommended that we deny the petition
for habeas corpus.       It based its recommendation principally
upon the provisions of S 46-23-1102(3), MCA, which in effect
provides that if Montana sends a person on probation or
parole into another state and decides to retake that person
to Montana the decision to retake is conclusive upon and not
reviewable within the receiving sta.te, in this case the State
of Idaho.
        Section 46-23-1102, MCA is a part of the Uniform Act for
Out-of-State Parolee Supervision contained in               §§   46-23-1101,
-1106, inclusive MCA.      That Act was ad-opted in this state in
1937.      Since that time       there have been           at least three
decisions in the United States Supreme Court which have an
effect on the provisions of       §   46-23-1102(3), MCA.
        In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33
L.Ed.2d    484, the United States Supreme Court held that a
parolee's       liberty      involves significant values within                  the
protection        of   the    due     process      clause of     the Fourteenth
Amendment       of     the    United     States         Constitution,    and     that
termination of that liberty requires an informal hearing to
give assurance that the finding of a parole violation is
based     on verified         facts to support the revocation.                     In
Morrissey, the Court decided that due process required a
reasonably        prompt     and     informal      inquiry     conducted    by    an
impartial hearing officer near the place of the alleged
parole     violation         or     arrest    to    determine       if   there     is
reasonable        ground      to    believe       the    arrested    parolee     had
violated a parole condition.                      The Supreme Court said in
Morrissey that minimum due process required a full hearing
before a neutral and detached hearing body for which the
parolee     had      been    given written          notice    of the     claim of
violations of parole, disclosure of the evidence against him,
an opportunity to be heard in person and to present witnesses
and to confront and cross-examine adverse witnesses.
        Following Morrissey, in Gagnon v. Scarpelli (1973), 411
u.S.    778, 93 S.Ct.         1756, 36 L.Ed.2d           656, the Supreme Court
repeated        that    due        process    mandates       preliminary        final
revocation hearings in the case of a probationer on the same
conditions as specified in Morrissey.
        In Moody v. Daggett (19761, 429 U.S. 78, 9 7 S.Ct. 274,
50 L.Ed.2d        236, however, the Supreme Court decided that a
parolee was not entitled to hearing on revocation when the
parole violator warrant had not been executed but rather was
issued     at     large      and     sent    to    the     institution     of    his
confinement as a "detainer."
       This Court held in Owens v. Risley       (Mont. 1985), 702
P.2d   1, 42 St.Rep. 1000, that Owens was not entitled to an
on-site    hearing   in   another   state   because    one   of   the
provisions of his parole was that he not leave Montana.
Since Owens had left the State of Montana without permission,
he had violated his parole by that fact, and was not entitled
to any further hearing.
       It is not necessary in this case to determine whether
there is an irreconcilable conflict between United States
Supreme Court decisions in Morrissey         and Gagnon and the
interstate compact provisions to which we             have   referred
above.     In any event, the purpose of the on-site preliminary
hearing and the eventual full-blown hearing on revocation is
to provide due process to the parolee, - - protect -
                                       and to      his
liberty interest at the time.       In this case, Howell did not
have   a   liberty   interest at the time of the proceedings
against him for the revocation of his parole.         He was at the
time under arrest in Idaho by reason of a charge against him
for assault.     His transfer by the Idaho authorities to the
Montana authorities while he was still under arrest did not
deprive him of any liberty interest since his detention by
the Idaho authorities was at all times lawful.           The United
States Court of Appeals for the Ninth Circuit has explained
the meaning of Morrissey in Pierre v. Washington State Board
of Prison Terms and Paroles (9th 1983), 699 F.2d 471.             In
that case, the Court of Appeals said:
       In Morrissey, the Supreme Court did not intend to
       lay down a rigid set of procedures to be followed
       ritualistically in every situa.tion. Rather, it
       prescribed a general framework to guide future
       parole revocation proceedings in order to guarantee
       that parolees are not deprived of procedural due
       process. The themes of flexibility and informality
       run throughout Morrissey:    "No interest would be
       served by formalism in this process; informality
    will not lessen the utility of this inquiry in
    reducing the risk of error."   Id. at 487, 92 S.Ct.
    at 2603.      "We have no thought to create an
    inflexible    structure   for   parole   revocation
    procedures."   - at 490, 92 S.Ct. at 2604. "We
                    Id.
    cannot write a code of procedure      .. . .
                                               Our task
    is limited. to deciding the minimum requirements of
    due process. "      - at 488-489, 92 S.Ct. at
                        Id.
    2603-2604. No formalistic set of procedures need
    be followed as long as the minimum due process
    reauirements enunciated in Morrissev are met.
    ~nd-er the facts of Morrissey, the two-hearing
                                              a

    requirement was just one way to satisfy minimum due
    process; it is not the only way in every case.


    We hold therefore that Howell was not deprived of a
liberty interest by the failure of the authorities to provide
for him a preliminary or on-site hearing.    We find in fact he
was given a full hearing on the revocation of his parole,
with the opportunity to meet the charges against him which
constituted the reasons for the revocation of his parole, to
cross-examine adverse witnesses, and to produce witnesses of
his own.     He has not been deprived of due process.
     ACCORDINGLY, IT IS ORDERED:
     That the petition of Michael Howell for habeas corpus
relief in this cause is hereby denied; and the order of this
Court on September 24, 1985, staying the appeal of Howell in
Cause No. 85-293 is hereby vacated.

                                              Justice
We Concur:
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