No. 84-547 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

DANNE WILLIAM OWENS, 

Petitioner, 

-vsHENRY RISLEY , 

Respondent. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Petitioner: 

Conde F. Mackay, Public Defender, Anaconda, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

Karl Nagel, Dept. of Institutions, Helena, Montana 

Submitted: April 9, 1985 

Decided: July 2, 1985 

\k.JQ$) Filed: ,. 

Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

Defendant, Danne William Owens, was convicted of burglary and sentenced to ten years at the Montana State Prison 

on May 27, 1981. He was paroled June 23, 1983, on the condition that he enter and complete the Lighthouse Program at 

Galen State Hospital. Defendant entered Galen on June 27, 

1983, and at 7:15 p.m. that evening was reported missing. 

Defendant's supervising parole officer issued a report 

of violation on July 5, 1983. Defendant was subsequently 

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

Following extradition, defendant was returned to Montana 

State Prison on December 3, 1983, and a final parole revocation hearing was held December 29, 1983. Defendant's parole 

was revoked at that hearing. 

Defendant filed a pro se petition for a writ of habeas 

corpus with this Court on December 19, 1984. The Department 

of Institutions responded on January 23, 1985. We then 

issued an order on January 30, 1985, remanding this case to 

the Third Judicial District Court for an evidentiary hearing 

to determine if petitioner received a preliminary on-site 

hearing for parole violation, pursuant to § 46-23-1024, MCA. 

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

entered into by both parties stating that no such preliminary 

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

waived his right to such a hearing. 

In his petition for a writ of habeas corpus and memorandum in support, defendant raises two basic issues: 

1. Whether defendant was wrongfully denied a preliminary on-site hearing on the revocation of his 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 preliminary 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 Lighthouse Project in Galen), there was no need to hold a preliminary 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 attorney, 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 "determine 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 sufficient 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 misunderstanding 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 officer 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 administering the probation and parole system. 

Although the presence and participation 

of counsel. will probably be both undesirable 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 or parolees." 411 

U.S. at 790, 93 S.Ct. at 1763, 36 L.Ed.2d 

at 666. 

Montana law provides for such a case-by-case determination. A.R.M. 5 20.25.801 (4) states: 

"If not represented by counsel, an indigent parolee may request such, and a 

decision on the request will be rendered 

by the board after due consideration." 

Where, as here, defendant has admitted violating a 

condition of parole and is capable of speaking effectively 

for himself, there is no abuse of discretion by the Board in 

refusing to grant defendant counsel. See Barton v. Malley 

(10th Cir. 1980), 626 F.2d 151, 158. 

Finally, defendant was not denied an opportunity to 

present his case. Defendant was asked one question, whether 

or not he had violated parole. He answered yes. The Board 

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 his parole and 

declined the opportunity to defend himself, there was no 

error. 

The revocation of defendant's parole is affirmed. 

We concur: /