HEINZ v. McNUTTHEINZ v. McNUTT
Appellants, the Secretary of the State of Washington, the State Department оf Social and Health Services, and members of the Washington Board of Prison Terms and Paroles (Parole Board) appeal from the district court‘s grant of Heinz‘s petition for a writ of habeas corpus. We affirm.
FACTS
In 1962, Heinz was convicted of second degree burglary and sentenced to 15 years imprisonment. He was released on parole in 1974. While on parole, he was convicted of first degree forgery and sentenced by a Wаshington state court to serve two concurrent 20-year maximum prison terms. He remained at liberty on bond pending appeal of the forgery convictions. Thereafter, in August 1975, he was arrested on a parole warrаnt. A preliminary parole revocation hearing was conducted and probable cause was found.
On September 11, 1975, without a hearing, Heinz‘s parole was revoked administratively by the Parole Board under authority of
In his habeas petition, Heinz alleged that automatic revocation of his parole because of his conviction denied him due process because he was not afforded a hearing in which he had an opportunity to present mitigating factors concerning his conviction to the Parole Board, the district court agreed and found
DISCUSSION
Whenever a paroled prisoner is accused of a violation of his parole, Other than the commission of, and conviction for, a felony or misdemeanor undеr the laws of this state or the laws of any state where he may then be, he shall be entitled to a fair and impartial hearing of such charges within thirty days from the time that he was returned to the institution from which he was paroled befоre at least two members of the parole board. (Emphasis added.)
In applying the statute, the Parole Board has adopted a policy of granting a final parole revocation hearing in all cases except those in which the parolee has been convicted of a felony and sentenced to a term of imprisonment.1
The issues for our consideration are (1) whether Heinz was denied due process by the Parole Board‘s failure to hold a final revocation hearing, and (2) whether
Appellants contend that, once a parolee has been convicted of a new offense, a final revоcation hearing is unnecessary. They argue that the sentencing court, which hears all relevant evidence, including any mitigating factors the defendant may wish to introduce, provides a sufficient forum to determine whether thе parolee should be incarcerated or not, and that the Parole Board can reasonably rely on the trial judge‘s determination.
Appellants also contend that since “a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime,” Morrissey v. Brewer, 408 U.S. at 490, 92 S.Ct. at 2605, a conviction conclusively proves a violation and the state is entitled to revoke parole if the violation is “found to be reasonable grounds for revoking parole under state standards.” Id. They argue that the sentencing judge‘s determination that the parolee-defendant should be incarcerated rather than placed on probation can be extended to apply to the parole revocation as well.
Finally, the appellants argue that in any event the Parоle Board‘s hearing to set the minimum sentence for the reincarcerated parolee ensured that Heinz had an opportunity to present his arguments to the Board.2
In Morrissey the Supreme Court enunciated the standards аnd procedures to be followed in proceedings to revoke parole. Before parole may be revoked, a preliminary hearing before an independent hearing officer must be held to detеrmine whether probable cause exists to believe that the parolee has violated the conditions of his parole. Once probable cause is found, a formal hearing is required to evaluate the аlleged violations and to decide whether the evidence warrants revocation.
At the latter formal hearing “(t)he parolee must have an opportunity to be heard and to show, if he can, that he did not violаte the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation.” Id. at 488, 92 S.Ct. at 2603. Furthermore, the hearing must comply with certain procedural requirements: written notice, disclosure to the parolee of the evidence against him, an opportunity to be heard and to present witnesses and documentary evidence, the right to cross-examine adverse witnesses, a neutral hearing body, and а written statement by the factfinder as to the evidence relied upon and the reasons for revoking parole. Id. at 489, 92 S.Ct. 2593.
In Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), the Supreme Court held that, where a parolee had already been convicted of a nеw crime, the need for the preliminary hearing required by Morrissey no longer existed because the conviction provided the requisite cause to believe that the parolee had violated the terms of his or her pаrole. The Court did not directly address the need for a final revocation hearing, Id. at 89, 97 S.Ct. 274; however, language in the decision strongly suggests that due process requires some form of final hearing. The Court stated that the Parole Commission had discretion to revoke parole at the appropriate time, Id. at 83-84, 97 S.Ct. 274, and that
in cases such as this, in which the parolee admits or has been convicted of an offense plainly constituting a parole viоlation, the only remaining inquiry is whether continued release is justified notwithstanding the violation.
Id. at 89, 97 S.Ct. at 279. The import is plain that the Moody Court did not consider a conviction and attendant incarceration as obviating the need for a specific determination as to revocation of parole. In other words, the existence of a violation does not automatically trigger parole revocation.
Other Circuits which have addressed the issue have concluded thаt a parole revocation hearing is required for parolees convicted of offenses committed while on parole. In Moss v. Patterson, 555 F.2d 137 (6th Cir. 1977), and Shepard v. United States Board of Parole, 541 F.2d 322 (2nd Cir. 1976),3 the courts concluded that, although the fact of a violation was conсlusively determined in the criminal trial, the parolee was still entitled to a hearing where he or she may present mitigating evidence to contest the revocation.
Similarly, in United States v. Williams, 558 F.2d 224 (5th Cir. 1977), and McNeal v. United States, 553 F.2d 66 (10th Cir. 1977), the courts, although addressing Moody problems of delay and potential prejudice, indicated that the parolee was entitled at some point to present mitigating evidence at a hearing before the final determination of parole revocation was made.
Parole revоcation considerations may differ from those involved in the sentencing for a criminal conviction.4 Moreover, under Washington law certain felony convictions require mandatory prison sentences. In such casеs, the trial judge will not be exercising discretion in imposing sentence and the parolee may be deprived of a meaningful opportunity to present mitigating factors.
We hold that
Heinz argues on appeal that Washington‘s application of
The judgment of the district court is affirmed.
Notes
To assist it in fixing the duration of a convicted person‘s term of confinement, prescribing treatment for such person while in confinement and supervising and regulating his or her activities while on parole, it shall not only be the duty of the board of prison terms and paroles to thoroughly inform itself as to the facts of such convicted person‘s crime, but also to inform itself as thoroughly as possible as to such Convict as a personality.