In RE MEMPA v. Rhay

416 P.2d 104, 68 Wash. 2d 882, 1966 Wash. LEXIS 821

• Court: Washington Supreme Court
• Decided: June 23, 1966
• Docket: 38470
• Status: Published

Opinions

Finley, J.

This matter involves a petition for a writ of habeas corpus. The salient facts are: Petitioner, Jerry D. Mempa, was charged in the Superior Court for Spokane County with “joy-riding,” as defined and prohibited by RCW 9.54.020. At his arraignment in that court, the petitioner was represented by court-appointed counsel, Willard J. Roe, then a prominent member of the Spokane Bar, and now a judge of the Spokane County Superior Court. Mempa, with the advice of counsel, entered a plea of guilty to the charge of “joy-riding.” He was granted the privilege of probation status, and the imposition of the sentence was deferred pursuant to the provisions of RCW 9.95.200 and 9.95.210. Thereafter (approximately 2 months later), the Spokane County Prosecutor’s Office moved to have Mempa’s probation status revoked for violation of the terms and conditions under which it had been granted. At a hearing in the Spokane County Superior Court, the petitioner’s probation was revoked. Sentence (the statutory maximum term of imprisonment of 10 years, subject, of course, to subsequent parole board action determining the actual period of institutional confinement or custody) was then imposed and, promptly thereafter, judgment, sentence, and an order of commitment were entered accordingly.

The basis of this petition for a writ of habeas corpus may be concisely described as follows: Jerry D. Mempa was not represented by counsel at the peremptory hearing in the Spokane Superior Court when (a) his probation status was revoked, (b) the deferral of sentence was vacated, and (c) its imposition took effect forthwith.¹ Thus, the problem presented to us for decision is whether probationer Mempa was entitled to counsel as a matter of constitutional right in relation to any one or all of the foregoing aspects of administration of the state probation system.

At this juncture some observations regarding the nature of probation — what it is and is not — may be helpful to an understanding of our decision herein denying Jerry D. Mempa’s petition for a writ of habeas corpus. It should first be noted that probation is a very useful and flexible tool or technique of modern penal administration. In fact, few well-informed people would disagree respecting the desirability of the objectives of probation and its constructive potential as a modern penal device for the rehabilitation of criminal offenders. Probation permits special handling of carefully selected criminal offenders who have pleaded guilty, or have been convicted of committing an offense against society. Perhaps in one sense the significant characteristic of the probation device is that the person who is fortunate enough to qualify and to have been granted probation status is allowed to be at liberty in the community. However, the probationer’s ostensible “liberty” is somewhat misleading in that he is actually under probation supervision. Thus, while the probationer is not confined to a penal institution, he remains in “semi-custody.” The purpose or theory of such an arrangement is that probation status, with attendant supervision and its emphasis upon law-abiding, responsible conduct on the part of the probationer, can be most conducive to the rehabilitation of criminal offenders as useful members of society.

However, probation, or the acquisition of probation status, must be kept in proper perspective. It is not a matter of constitutional right. It is a matter of privilege or grace, authorized by the state legislature to be granted or initially implemented solely through an exercise of judicial discretion by the superior court judges of the state. State ex rel. Schock v. Barnett, 42 Wn.2d 929, 259 P.2d 404 (1953).

Furthermore, the fact must not be overlooked that probationers, as a class, are criminal offenders, both in a legal and social or community sense. And, once again, it should be remembered that each such person who is afforded the privilege of probation status by a judge of the superior courts of this state has either (a) pleaded guilty, or (b) has been convicted of an offense prohibited by the criminal laws of the state of Washington. No inference is intended that, once having broken the law, such individuals are forever branded as criminals and forever afterward are to be treated as such. But the plain emotionally unvarnished facts are that probationers have broken the law. They have a criminal record; and as a result society has a substantial interest in guiding or conforming their future conduct — if not in terms of atonement or punishment, then clearly in terms of the possibility of their rehabilitation as productive members of society.

While those having probation status are accorded considerable freedom and liberty, their status and rights in this respect, and the matter of their liberty and freedom as well as limitations and termination thereof, are not to be placed in the same category with the quantum of rights the average law-abiding citizen possesses with respect to civil liberty and freedom. Stated another way, probationers are not average, consistently deserving law-abiding citizens-.They have exhibited in the past a tendency (at least in one instance) to engage in legally disapproved antisocial conduct.

Considering probationers as a class of criminal offenders, there is a close analogy between their status and the status of others who have pleaded guilty — or have been convicted —and have been committed to institutional custody, supervision and discipline rather than being granted probation. The administration and control of the activities and conduct of the latter group is of course performed by the prison authorities. It would seem farfetched to suggest that the courts should invade this particular sphere of administrative prerogative and, by judicial fiat, exercise some sort of supervisory authority over existing prison administration, standards and practices.

In terms of further insight into the nature of probation and the administration of the probation system, similar reference and analogy could also be made to the functions of the State Board of Prison Terms and Paroles. The Board fixes the period of confinement and the terms and conditions of parole of those criminal offenders who have been committed to state institutional custody. In addition, the Board has the authority and the responsibility for administration of the state probation system. Judicial scrutiny, review, and control over the everyday matters of prison administration and/or parole administration is not only not feasible; it is inadvisable in the light of the particular expertise and training necessary to provide effective institutional custody and parole supervision. Judicial invasion of prison administration inevitably would be most disruptive of prison programing, supervision, and discipline. The courts cannot and should not be expected to go into the prisons and decide which prisoners should be treated as “trustees.” The point is obvious: prison officials must have effective control and authority in order to maintain an effective prison program. The same can be said of probation programing and administration.

Administrative and field probation officers, as well as prison officials, work diligently to establish workable programs for effective guidance of criminal offenders under their supervision and in their semicustody. Easy access to the courts by probationers to re-evaluate, or challenge, varied aspects of probation programing could well be disastrous in terms of the operation of the Washington state probation system. We are convinced that effective supervision of the probation vehicle by probation officers is a sensitive area, and one not particularly suited to detailed, over-all, or even general judicial supervision.

It may seem somewhat more appealing and persuasive to contemplate according full due process rights and privileges to probationers with respect to the termination of their liberty to be at large in their communities than would be the case with respect to the termination of the privileges of prison inmates. However, we are convinced that, while there are some differences in the status and the potential for rehabilitation as between probationers, inmates, and parolees, the problems of administration and the objectives are basically similar in all three areas. To reiterate: there are no constitutional rights respecting the acquisition of probation status. Logically and rationally, there should be correlatively few, if any, constitutional rights and standards controlling the revocation of probation and matters of administration and supervision of those who have been granted that status.

The above outlined judicial views about the general nature of probation are re-enforced by the following language of RCW 9.95.220, which sets out certain legislative policy determinations made with respect to the operation of our probation system. This legislation provides as follows:

Whenever the state parole officer or other officer under whose supervision the probationer has been placed shall have reason to believe such probationer is violating the terms of his probation, or engaging in criminal practices, or is abandoned to improper associates, or living a vicious life, he shall cause the probationer to be brought before the court wherein the probation was granted. For this purpose any peace officer or state parole officer may rearrest any such person without warrant or other process. The court may thereupon in its discretion without notice revoke and terminate such probation. In the event the judgment has been pronounced by the court and the execution thereof suspended, the court may revoke such suspension, whereupon the judgment shall be in full force and effect, and the defendant shall be delivered to the sheriff to be transported to the penitentiary or reformatory as the case may be. If the judgment has not been pronounced, the court shall pronounce judgment after such revocation of probation and the defendant shall be delivered to the sheriff to be transported to the penitentiary or reformatory, in accordance with the sentence imposed. (Italics ours.)

It should be noted that the foregoing statute provides that any peace officer or state parole officer may re-arrest a probationer without warrant or other process; furthermore, that the court may thereupon, in its discretion, without notice, revoke and terminate such probation. The statute further provides that suspended or deferred sentences may be summarily revoked, sentence imposed, judgment rendered, and the defendant delivered to the sheriff for transfer to the state penitentiary. While it is true that the revocation of probation does occur in court, and the function is performed by a judge of the superior court, there is nothing in the statute enacted by the legislature to require the observance and application of due process standards as to this facet of the administration of the state probation system. We are not inclined, judicially, to impose, and to judicially assume responsibility for applying to probation those due process standards which unquestionably are applicable and must be observed in the more orthodox aspects of criminal law administration.

State v. Shannon, 60 Wn.2d 883, 889, 376 P.2d 646 (1962), contains the following statement:

(f) Imposition of sentence, following revocation of probation, particularly in felony cases, is part of the criminal prosecution within the contemplation of Const. Art. 1, § 22 (amendment 10), at which time a defendant is entitled to be represented by counsel. In re McClintock v. Rhay, 52 Wn. (2d) 615, 328 P. (2d) 369; In re Levi, 39 Cal. (2d) 41, 244 P. (2d) 403. (First italicized portion ours.)

The petitioner relies strongly on the foregoing views expressed in Shannon. But the basic doctrinal premise of petitioner’s argument seems to be that the principle applied in the landmark decision in Gideon v. Wainwright, 372 U.S. 335 (1963), should be applied, or extended and made to apply, in a probation context.

We will first discuss the above-quoted portion of the decision of this court in State v. Shannon, supra. The criminal offender therein initially pleaded guilty to grand larceny. His sentence was deferred, and probation granted. As in the instant matter, violations of the conditions of probation were reported. A revocation hearing was held at which the defendant was not represented by counsel and offered no evidence to counter reported noncompliance with the conditions of probation. Probation was revoked, and sentence was imposed. The criminal offender was thereupon transferred from probation supervision and custody to prison supervision and custody. The former probationer who thus became an inmate of the state penitentiary filed a petition for a writ of habeas corpus in the Superior Court for Walla Walla County. The matter was remanded to the Superior Court for Thurston County where the prisoner had been tried ánd convicted. That court vacated the prior revocation of the criminal offender’s probation and, furthermore, appointed counsel to advise and represent the petitioner at a hearing to be held on the question of whether or not probation status should be revoked and sentence imposed. The Superior Court for Thurston County, with the defendant and his court-appointed counsel present, reached the same result as at the previous probation revocation hearing when the probationer had not been represented by counsel. In other words, probation was revoked, and, immediately thereafter, sentence was imposed by the court. The defendant in the Shannon case thereupon appealed.

In the Shannon opinion this court, as indicated hereinbe-fore, did, in fact, comment upon the right to counsel in a probation context; i.e., the right to counsel apropos of (a) the revocation of probation and (b) the imposition of sentence. The language of Shannon cited by the petitioner herein could admittedly be interpreted,- and extended, to the effect that a probationer whose status has been revoked has the right to counsel in a due-process constitutional sense at the imposition of his suspended or deferred sentence following revocation of his probation. However, there was in fact no issue of the right to counsel explicitly before this court in Shannon. The reason should be quite obvious. The probationer in Shannon was in fact represented by court-appointed counsel in the Thurston County Superior Court at the time of revocation of probation and the imposition of sentence. The issues specifically raised in Shannon are not issues herein.

State v. Shannon, supra, construed on the basis of the facts and the issues involved, and properly limited to the decision therein, is not apt in terms of the facts in the instant application for habeas corpus by Jerry D. Mempa. Furthermore, the statements in Shannon as to an alleged right to counsel at a hearing concerning revocation of probation and at the time of subsequent imposition of sentence constituted dicta which, upon further consideration, the court is reluctant and unwilling to apply in the instant case as the law of this state.

We also note in passing that In re McClintock v. Rhay, 52 Wn.2d 615, 328 P.2d 369 (1958) — cited in State v. Shannon, supra — did not involve revocation of probation and imposition of sentence. It is therefore distinguishable on this basis and provides no support for the claim of Mempa for a writ of habeas corpus in the instant case.

In this connection, we do not read State v. O’Neal, 147 Wash. 169, 265 Pac. 175 (1928), an early case involving a suspended sentence and a situation somewhat akin to the modern concept of probation, as being inharmonious with our reasoning in the instant case.

Insofar as State v. Shannon, supra, In re McClintock, supra, and State v. O’Neal, supra, may be inconsistent with the views expressed in this opinion, they are hereby overruled.

Our views as to the problem presented in the instant case may be summarized as follows: While probation is a modern innovation with much constructive potential in terms of the possible rehabilitation of criminal offenders, probation status, or the granting of it by the courts, is a matter of grace or privilege to be granted solely in the discretion of the courts. In the state of Washington the legislature has established a state probation system and has provided for its functions, operations, and administration. The legislature has not prescribed that due process standards shall be observed and applied by the superior courts of Washington in the very limited, but admittedly significant, function performed in granting, denying, limiting and terminating probation status of criminal offenders. We have previously held that there are no constitutional rights respecting the acquisition of probation status. And it is furthermore our reasoning that there are no constitutional rights involved in the termination or revocation of probationary status, or in respect to the concomitant operations of the superior courts involving imposition of either (1) suspended or (2) deferred sentences. The function involved, in terms of definitive action, is essentially quasi-administrative or plenary in nature. The operations are essentially no different from those performed administra-lively by the State Board of Prison Terms and Paroles or by the prison authorities in administering other phases of penal administration in the state of Washington.

A criminal defendant adequately represented by counsel, who, with counsel at his side, upon the entry of a plea of guilty or in a trial culminating in conviction accepts probation status, does so on the basis of the existing statutes. These clearly authorize termination of probation and imposition of sentence without notice and without reference to allegations of denial of constitutional rights, admittedly pertaining to more orthodox criminal proceedings in the trial courts of this state. In such a context it may even be said there has been a waiver of any right to claim denial of criminal due process procedure in a proceeding involving termination of probation status and the imposition of sentence.

Underlying petitioner Mempa’s claim in the instant case, there may have been, as indicated, some conjecture that the principles announced in the landmark Gideon case should apply or should be extended to proceedings involving revocation of probation and imposition of previously (a) suspended or (b) deferred criminal sentences. We are not constrained to read or apply Gideon in such a manner in the format or context of the administration of probation. Petitioner Mempa was adequately represented by counsel at the time he entered a plea of guilty and accepted the probation status. Thus, the petitioner was accorded full due process considerations at the appropriate time. He can make no valid claim of deprivation of an alleged constitutional right — at least not in a deferred sentence, probation, semicustody administrative context.

Nor can there be any valid contention that the decision of the United States Supreme Court in Escoe v. Zerbst, 295 U.S. 490 (1935), is directly controlling of the instant matter. That decision involved a petition for a writ of habeas corpus by an inmate of a federal penitentiary whose probation had been revoked by a federal district judge on an ex parte showing without the probationer being brought before the court. The main thrust of the opinion is that such a procedure clearly contravened the intent of Congress as expressed in the language of the applicable federal probation statute — requiring that “such probationer shall forthwith be taken before the court.” The Escoe opinion clearly negates the applicability of any specific constitutional safeguards and negatives the existence of constitutional due process rights pertaining to matters involving the revocation of federal probation. The above-mentioned federal statutory requirements constituted the sole basis for granting the writ of habeas corpus.

Furthermore, Escoe v. Zerbst, supra, did not involve any question of right to counsel — either at the probation hearing or at the imposition of sentence; and right to counsel at either stage of the proceedings is the only question raised by the petition in the instant case.

Thus, we do not regard the policy considerations and value judgments of the United States Supreme Court, as enunciated in Escoe v. Zerbst, supra, to be controlling relative to our disposition of the instant matter. The appropriate federal statute required the presence of the probationer before the court during hearings concerning revocation of probation. The Washington statute likewise requires that “he shall cause the probationer to be brought before the court wherein the probation was granted.” But there is no further statutory requirement as to presence of counsel, burden of proof, right to confront witnesses, et cetera.

In all fairness to a probationer — and consonant with regular and orderly court procedure — we would anticipate that probationers should and will be given an opportunity to present their side of the story to the court respecting reported violation of the terms or conditions of probation. But the scope of any such inquiry or hearing rests solely in the discretion of the superior court judges of the state of Washington. No appeal, or a petition for a writ of habeas corpus, will be successful in this court where the question is whether the probationer was accorded his constitutional due process rights at the hearing. He simply has none.

For the foregoing reasons, we find no merit in petitioner Mempa’s allegations of denial of constitutional criminal due process procedural rights in the instant case. The application for habeas corpus should be denied. It is so ordered.

Rosellini. C. J., Hill, Ott, Hunter, and Hale, JJ., concur.

1 Relative to a deferred sentence, RCW 9.95.220 provides:

If the judgment has not been pronounced, the court shall pronounce judgment after such revocation of probation and the defendant shall be delivered to the sheriff to be transported to the penitentiary or reformatory, in accordance with the sentence imposed.