No. 13803 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

DANIEL H. LOPEZ, Petitioner,

ROGER CRIST,Warden, Montana State Prison, Respondent.

Appeal from: District Court of the First Judicial District, Honorable Gordon Bennett, Judgepresiding. Counsel of Record: For Petitioner: Peter M. Meloy argued, Helena, Montana For Respondent: Hon. Mike Greely,Attorney General,Helena, Montana Charles Graveley, CountyAttorney, Helena,Montana Nick A. Rotering argued, Helena, Montana

Submitted: May 4, 1978

Filed: a

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### 7478 @AVI-Mr. Justice Daniel J. Shea delivered the Opinion of the Court. his is an originalproceeding wherein petitioner, Daniel H. Lopez, seeks release from custody to parole status through a writ of habeas corpus. Petitioner plead guilty to a charge of rape in Missoula County and was sentenced to a 20 year term in the state prison in 1970. On September 22, 1975,petitioner was 2aroled by the Board of Pardons and transferred to the supervision of a parole officer in Helena,Montana. Be leftMontana shortly thereafter,without the permission of his parole officer,but returned upon being told by his parole officer that he would not be chargedwith a parole violation for leaving the state. Petitioner then enrolled in a concentrated employment program in Helena. Petitionerwas arrested in Helena on November 7, 1975,on
a parole violation, issued because he was a suspect in a sexual assault case in Lewis and Clark County. An on-site hearing on the alleged parole violation was held on November 26, 1975. The hearing examiner found probable cause to hold petitioner pending a full hearing on the alleged parole violation. Petitionerwas returned to the stateprison. A hearing before the Board of Pardons set for December 18, 1975, was continued at petitioner's request to enable him to obtain

an attorney. The Board set January 29, 1976,as the new hearing date. Petitionerdid not appear at this hearing, and the Board deemed his failure to appear a waiver of his right to a hearing and revoked his parole. Petitioner's allegation that a prison guard refused to allow him to attend that hearing was not disputed by respondents. Trial in Lewis and Clark County on the sexual assault charge resulted in an acquittal on July 8, 1976. Petitionerwas returned to custody at the stateprison following that trial.On ~pril 25, 1977,Lopez petitioned this Court for a writ of habeas corpus. We remanded the petition to the DistrictCourt, ~ewis and Clark County, for hearing and determination. Following

a hearing, by order filedAugust 18, 1977, the District Court directed the Board of Pardons to provide petitioner with a full hearing on his parole revocation. The District Court also ruled that petitioner was not entitled to release from custody toparole status pending that hearing. Petitioner then filed an appealwith this Court challenging the District Court's denial of his petition for release to parole statuspending his revocation hearing. Before that appeal could be heard, the Board of Pardons set a hearing on petitioner's parole revocation pursuant to the District Court's order. On December 29, 1977,after severaldelays, petitioner appeared before the Board of Pardons for the hearing on the merits of his parole revocation. The Board found therewas insufficient evidence to warrant revocation and voted to restore petitioner's parole. However, the Board did not releasepetitioner to parole. Rather, it ordered him to appear at the next Board meeting, in January 1978,to present an acceptable parole plan. Petitioner appeared at that meeting and presented two parole plans. Neither was acceptable to the Board. Therewas
some opposition,apparently from law enforcement authorities from Missoula and Lewis and Clark Counties, to petitioner being paroled in Montana, and the Board therefore suggestedhe submit an out-of-stateparole plan. On April 6, 1978,petitioner filed a second petition for a writ of habeas corpuswith this Court, alleging his continued detention is illegal. Petitioner contends he is entitled to immediate release from custody and return to parole status. Respondent Department of Institutions contends the state has the power to keep petitioner 

### in custody until he submits an acceptablenewparole plan.Both sides concede the Board of Pardons and the Department of Institutions have broad discretionary powers regarding parole matters. Parole is amatter of grace, not of right, and whether

a convict is behind walls or walking the streetson parole, he remains subject to the sentence imposed and to the regulatory action of the parole authorities. State ex rel. Herman and Roy v. Powell, (1961), 139 Mont. 583, 589, 367 P.2d 553; Petition of LaDoux, (1964),144 Mont. 9,11, 393 P.2d 778. The imposition of parole conditions and the supervision of parolees are mandated by administrative regulationand statutory law. See: MAC 20-3.10(6)-S10060; sections 95-3214 and 95-3306, R.c.M. 1947. Clearly,parole authorities have the duty, in the exercise of their sound discretion, to control and conditionparole as best suits the needs of society as well as the parolee. Parole statutes and case law establish guidelines for the granting and revocation of parole,but none embrace the precise question here--whether a parolee who, after a full revocationhearing,has been bound by the Board of Pardonsnot to have violated his parole may nevertheless be confinedpending submission of an acceptablenewparole plan. InMorrissey v. Brewer, (1972), 408U.S. 471, 92 S.Ct. 2593, 33 L Ed 2d 484, the Supreme Court of the United Statesheld that due process requires at least an informal hearing prior to the revocation of parole. The Supreme Court recognized the importance of parole status as an underlying consideration supportingdue process protections, stating: 

## "** * the liberty of a parolee, although indeterminate, includesmany of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee and often others. 

## * * *" Morrissey, 33 L Ed 2d 495. Here, the Board's determination that there was insufficient evidence to revokepetitioner's parole establishes that his "indeter-minate liberty" should be restored. Respondents' argument that petitioner must first submitan acceptable parole plan is not wholly without merit. However, under the circumstances,petitioner should not have to carry that burden alone. The parole authoritieshave, in this case, an affirmative duty to actively aid petitioner in developing a realistic,acceptableplan. It is must be recognized thatpetitioner/ in prison only because the authoritiesmade an erroneous decision that he had violated the terms of his parole. Surely petitioner, under these circumstances, is entitled to the total cooperation and active efforts of the authorities in finding an acceptable parole plan. Petitioner is entitled to release from custody to parole status. The authorities are given thirty days from the date of this decision to develop and approve a parole plan forpetitioner. If at the end of thirty days suchplan has not been approved and the petitioner released,petitioner is ordered released fromprison,with the authorities ordered to supervise the out-of-prison activities of petitioner commensuratewith his status as a parolee. ,----. i ,

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# g. J/&dL f Justice 1' C

We Concur: