No. 84-547 INTHE 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 KarlNagel, Dept. 

### of Institutions, Helena, Montana

Submitted: April 9, 1985 Decided: July 2, 1985
\k.JQ$) Filed: ,.

ClerkMr. Justice Frank B. Morrison, Jr., delivered the Opinion of theCourt. Defendant, Danne William Owens, was convicted of burglary and sentenced toten years attheMontana StatePrison
on May 27, 1981. Hewas paroled June 23, 1983, on thecondition 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 StatePrison on December 3, 1983, and a finalparole revocation hearing was held December 29, 1983. Defendant's parole
was revoked atthathearing. Defendant filed a pro se petition for a 

### writof habeas corpus with thisCourt 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 DistrictCourt for an evidentiaryhearing to determine if petitioner received a preliminary on-site hearing forparole violation, pursuant to § 46-23-1024, MCA. That hearing was held March 7, 1985. A stipulation was entered intoby both parties statingthatno suchpreliminary on-site hearing had been held and that defendant had not waived hisrighttosuch a hearing. Inhispetition fora writof habeas corpus and memorandum in support, defendant raisestwo basic issues: 1. Whether defendant was wrongfully denied a preliminary on-site hearing on the revocation of his appeal; and2. 

### Whether defendantwas 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 jurisdictionwhere he had no permission to be. Since the fact of his arrest in another jurisdiction established probable cause that Owens had violated his parole (heobviouslywas not at the Lighthouse Project in Galen),therewas no need tohold apreliminary hearing on the issue of whether or not probable cause existed. Regarding issue number two, the State contends first that defendantwas not constitutionallyentitled to an attorney, and second, that Owens was given every opportunity to present evidenceorwitnesses 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 isprobable cause or reasonableground 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, 408U.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 ofhisparole such that apreliminary

### probable cause hearing is not required." (Citationomitted.) Chilembwev. Wyrick (8thCir. 1.978),574 F.2d 985, 987. In a special concurrence to Chilembwe, supra,Judge Lay raises an important issue. He believesMorrissey to require
an on-site hearing in order to avoid: "the possibility of anymistake ormisunderstanding 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 tovoice 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 SupremeCourt 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 inwhich fundamental fairness--the touchstone of due process--will require that the State provide at its expense counsel forindigent probationers orparolees." 411 U.S. at790, 93 S.Ct. at1763, 36 L.Ed.2d at666. 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 requestwillbe rendered by the board after due consideration." Where, as here, defendant has admitted violating a condition of parole and is capable of speaking effectively forhimself, there isno abuse of discretionby theBoard in refusing togrant defendant counsel. See Barton v. Malley (10thCir. 1980), 626 F.2d 151, 158. Finally, defendant was not denied an opportunity to present hiscase. Defendant was asked one question, whether
ornot 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 isaffirmed.

Weconcur: 

### /