Arterburn. C.J.
This is an appeal from a denial of a judgment in a petition for a writ of habeas corpus filed in the Madison Circuit Court by the appellant, James Russell. James Russell was convicted of second degree burglary and sentenced to imprisonment of not less than two years nor more than five in the Indiana State Reformatory on September 11, 1969. Before the minimum of two years was up, namely on June 15 of 1971, he was paroled and signed a parole agreement containing certain conditions of parole, all of which are not made apparent in the record. He claims that his parole was illegally revoked without proper notice and hearing and without his having an opportunity to be represented by counsel. He bases his appeal primarily upon Morrissey v. Brewer (1972), 408 U.S. 47, 92 S. Ct. 2593, 33 L. Ed. 2d 484.
However, as stated in Morrissey v. Brewer:
“We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. . . . Revocation deprives an individual not of the absolute liberty to which every citizen is entitled, but only of the [669]*669conditional liberty properly dependent on observance of special parole restrictions.” Id., 92 S. Ct. at 2600, 33 L. Ed. 2d at 494.
A brief review of Indiana law regarding parole and parole procedures is in order. The public policy of this State as expressed in IC 1971, 11-1-1-9 [Burns’ Ind. Stat. Ann. §13-1609 (1972 Supp.)] vests the parole board with almost absolute discretion in paroling convicts on terms and conditions thought advisable:
•5» Hi
“Before ordering the parole of any prisoner, the Indiana parole board shall have the prisoner appear before it, and shall interview him. A parole shall be ordered only for the best interest of society, not as an award of clemency; it shall not be considered to be a reduction of sentence or pardon. A prisoner shall be placed on parole only when arrangements have been made for his proper employment, or for his maintenance and care, and only when the Indiana parole board believes that he is able and willing to fulfill the obligations of a law-abiding citizen. Every prisoner while on parole shall remain in the legal custody of the tvarden or superintendent of the institution from which he was paroled but shall be subject to the orders of the Indiana parole board.
The Indiana parole board may adopt such other rules not inconsistent with law as it may deem proper or necessary, with respect to the eligibility of prisoners for parole, the conduct of parole hearings, or conditions to be imposed upon parolees. Whenever an order for parole is issued it shall recite the conditions thereof.” (emphasis added)
* Sc *
It will be noted that all paroles are intended to be conditional. In the case before us, the appellant apparently signed an agreement reciting the conditions of his release and was fully cognizant of its implications and requirements.
Further, this Court has held that remaining at liberty under parole is not a “right” recognized by the Constitution. Instead, parole has been regarded as a “privilege” granted [670]*670by the grace and indulgence of the state government in the hope of achieving reformation:
“This discretion of the board [parole board] is not subject to the supervision or control of the courts. It resembles that usually exercised by a board of pardons, or by the Governor of this State under the authority committed to him by the Constitution to grant reprieves, commutations of sentences, and pardons. The law confers upon the person imprisoned in the reformatory no absolute right of discharge under any circumstances until the maximum term of imprisonment prescribed as the punishment for the crime of which such inmate has been adjudged guilty has expired.” Terry v. Byers (1903), 161 Ind. 360, 363, 68 N. E. 596, 597-98.
From what we can gather from rather a meager record in this case, a parole officer received a letter from Father Doyle recommending a mental examination of the appellant (then on parole) apparently because of Doyle’s observations. The parole officer stated that the regular course of procedure in such matters was not to accept the letter as a fact, but rather, it put the officer on the alert to make a further investigation, which was done in this case.
On September 15, 1971, the appellant was arrested and taken to the St. Joseph County Jail. On September 22, he was returned to the Reformatory. A hearing was held on October 21 before the Parole Board. There was a decision to continue the matter for thirty days. A second hearing was held in the Reformatory on November 19.
The parole officer stated that the appellant was placed under' arrest and returned to the state reformatory at the time indicated for the purpose of a psychiatric evaluation since there were no other facilities that could perform any evaluation or examination.
From the record in this case it appears that the parole board was confronted with charges and evidence that Russell, the appellant, had:
1. left the state without permission.
[671]*6712. used Robitussin cough syrup which contains a narcotic drug and
3. associated with other men with records all in violation of the appellant’s parole agreement. There is evidence to the effect that at the first hearing (October) he admitted the violations, but at the later hearing (November) referred to herein he denied the violations. The record does not disclose what witnesses were present other than the parole officer, or what evidence was introduced other than that the parole officer repeated at the habeas corpus proceeding regarding the admitted violations of the appellant at the first hearing.
In the Morrissey case relied upon by the appellant, the parole was revoked merely upon the statement of the parole officer to the parole board apparently without any hearing or opportunity of the parolee to appear and be heard. Id., 92 S. Ct. at 2596-98, 33 L. Ed. 2d 489-91. In the case before us it is true that the appellant was arrested by a parole officer apparently with the belief that he should be brought in for the purpose of a psychiatric examination and treatment. It appears without question that the appellant was informed of the charges of parole violation being made against him at the time the psychiatric examination was being called for. Although the testimony is in conflict, the parole officer stated that the appellant admitted the violation at the first hearing. In this case the appellant had a second hearing before the full parole board with opportunity to explain or minimize the violations charged and his parole was finally revoked. Morrissey specifically states that a parole board is sufficiently detached and neutral in its viewpoint that it can hear and make a finding for a revocation of a parole. Id., 92 S. Ct. at 2604, 33 L. Ed. 2d at 499. The major emphasis of the appellant here, however, is that he did not have an attorney, and an opportunity for cross-examination.
Free access — add to your briefcase to read the full text and ask questions with AI
Arterburn. C.J.
This is an appeal from a denial of a judgment in a petition for a writ of habeas corpus filed in the Madison Circuit Court by the appellant, James Russell. James Russell was convicted of second degree burglary and sentenced to imprisonment of not less than two years nor more than five in the Indiana State Reformatory on September 11, 1969. Before the minimum of two years was up, namely on June 15 of 1971, he was paroled and signed a parole agreement containing certain conditions of parole, all of which are not made apparent in the record. He claims that his parole was illegally revoked without proper notice and hearing and without his having an opportunity to be represented by counsel. He bases his appeal primarily upon Morrissey v. Brewer (1972), 408 U.S. 47, 92 S. Ct. 2593, 33 L. Ed. 2d 484.
However, as stated in Morrissey v. Brewer:
“We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. . . . Revocation deprives an individual not of the absolute liberty to which every citizen is entitled, but only of the [669]*669conditional liberty properly dependent on observance of special parole restrictions.” Id., 92 S. Ct. at 2600, 33 L. Ed. 2d at 494.
A brief review of Indiana law regarding parole and parole procedures is in order. The public policy of this State as expressed in IC 1971, 11-1-1-9 [Burns’ Ind. Stat. Ann. §13-1609 (1972 Supp.)] vests the parole board with almost absolute discretion in paroling convicts on terms and conditions thought advisable:
•5» Hi
“Before ordering the parole of any prisoner, the Indiana parole board shall have the prisoner appear before it, and shall interview him. A parole shall be ordered only for the best interest of society, not as an award of clemency; it shall not be considered to be a reduction of sentence or pardon. A prisoner shall be placed on parole only when arrangements have been made for his proper employment, or for his maintenance and care, and only when the Indiana parole board believes that he is able and willing to fulfill the obligations of a law-abiding citizen. Every prisoner while on parole shall remain in the legal custody of the tvarden or superintendent of the institution from which he was paroled but shall be subject to the orders of the Indiana parole board.
The Indiana parole board may adopt such other rules not inconsistent with law as it may deem proper or necessary, with respect to the eligibility of prisoners for parole, the conduct of parole hearings, or conditions to be imposed upon parolees. Whenever an order for parole is issued it shall recite the conditions thereof.” (emphasis added)
* Sc *
It will be noted that all paroles are intended to be conditional. In the case before us, the appellant apparently signed an agreement reciting the conditions of his release and was fully cognizant of its implications and requirements.
Further, this Court has held that remaining at liberty under parole is not a “right” recognized by the Constitution. Instead, parole has been regarded as a “privilege” granted [670]*670by the grace and indulgence of the state government in the hope of achieving reformation:
“This discretion of the board [parole board] is not subject to the supervision or control of the courts. It resembles that usually exercised by a board of pardons, or by the Governor of this State under the authority committed to him by the Constitution to grant reprieves, commutations of sentences, and pardons. The law confers upon the person imprisoned in the reformatory no absolute right of discharge under any circumstances until the maximum term of imprisonment prescribed as the punishment for the crime of which such inmate has been adjudged guilty has expired.” Terry v. Byers (1903), 161 Ind. 360, 363, 68 N. E. 596, 597-98.
From what we can gather from rather a meager record in this case, a parole officer received a letter from Father Doyle recommending a mental examination of the appellant (then on parole) apparently because of Doyle’s observations. The parole officer stated that the regular course of procedure in such matters was not to accept the letter as a fact, but rather, it put the officer on the alert to make a further investigation, which was done in this case.
On September 15, 1971, the appellant was arrested and taken to the St. Joseph County Jail. On September 22, he was returned to the Reformatory. A hearing was held on October 21 before the Parole Board. There was a decision to continue the matter for thirty days. A second hearing was held in the Reformatory on November 19.
The parole officer stated that the appellant was placed under' arrest and returned to the state reformatory at the time indicated for the purpose of a psychiatric evaluation since there were no other facilities that could perform any evaluation or examination.
From the record in this case it appears that the parole board was confronted with charges and evidence that Russell, the appellant, had:
1. left the state without permission.
[671]*6712. used Robitussin cough syrup which contains a narcotic drug and
3. associated with other men with records all in violation of the appellant’s parole agreement. There is evidence to the effect that at the first hearing (October) he admitted the violations, but at the later hearing (November) referred to herein he denied the violations. The record does not disclose what witnesses were present other than the parole officer, or what evidence was introduced other than that the parole officer repeated at the habeas corpus proceeding regarding the admitted violations of the appellant at the first hearing.
In the Morrissey case relied upon by the appellant, the parole was revoked merely upon the statement of the parole officer to the parole board apparently without any hearing or opportunity of the parolee to appear and be heard. Id., 92 S. Ct. at 2596-98, 33 L. Ed. 2d 489-91. In the case before us it is true that the appellant was arrested by a parole officer apparently with the belief that he should be brought in for the purpose of a psychiatric examination and treatment. It appears without question that the appellant was informed of the charges of parole violation being made against him at the time the psychiatric examination was being called for. Although the testimony is in conflict, the parole officer stated that the appellant admitted the violation at the first hearing. In this case the appellant had a second hearing before the full parole board with opportunity to explain or minimize the violations charged and his parole was finally revoked. Morrissey specifically states that a parole board is sufficiently detached and neutral in its viewpoint that it can hear and make a finding for a revocation of a parole. Id., 92 S. Ct. at 2604, 33 L. Ed. 2d at 499. The major emphasis of the appellant here, however, is that he did not have an attorney, and an opportunity for cross-examination. The record does not show that he made such a request although the procedure outlined by the parole officer was that if any attorney desired to be heard that they permitted it, even though the [672]*672Rules of the parole board did not permit appearances of attorneys on either side at the hearing. RULE OF THE INDIANA PAROLE BOARD NO. 13 IBurns’ Adm. Rules & Regs. Ann. (13-1609)-11 (1967)] adopted pursuant to IC 1971,11-1-1-9 [Burns’ Ind. Stat. Ann. § 13-1609 (1972 Supp.)]
The Indiana law gives an accused an attorney in a criminal proceeding. This the appellant had at the time of his original conviction. The hearing on revocation of his conditional parole is not a criminal proceeding, but is administrative in nature. The General Assembly of this State has vested almost complete discretion in the Indiana Parole Board to adopt rules and regulations for the conduct of its hearings pursuant to IC 1971,11-1-1-9, \_Burns’ Ind Stat. Ann. § 13-1609 (1972 Supp.)] The Morrissey case expressly recognized the desirability of allowing a degree of informality and flexibility in parole procedures. The whole context of Morrissey is that these hearings are not to have the strict formality of a trial in a criminal case. It is there said:
“We have not thought to create an inflexible structure for parole revocation procedures. The few basic requirements set out above, which are applicable to future revocations of parole, should not impose a great burden on any State’s parole system.” (emphasis added) Id., 92 S. Ct. at 2604, 33 L. Ed. at 499.
It will be noted that this case was apparently setting new standards which are applicable only “to future revocations of parole” and therefore, the standards set forth in Morrissey are not applicable in the case before us.
With reference to appellant’s contention that he was entitled to an attorney at the parole board hearing, the United States Supreme Court in that case also stated:
“We do not reach or decide the question whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent.” Id., 92 S. Ct. at 2604, 33 L. Ed. 2d at 499.
[673]*673The appellant cannot rely upon Morrissey in insisting upon his right to an attorney.
Because of the informality of a parole board hearing and the nature of the so-called “rights” involved and the policy of the state of Indiana to give almost absolute discretion to a parole board, we, as a court, should not attempt to change that policy. The appellant has failed to present any prejudicial error in the trial court’s judgment.
The judgment is affirmed.
Givan, Hunter, JJ., concur; DeBruler, J., dissents with opinion in which Prentice, J., concurs.