Shum v. Fogliani

413 P.2d 495, 82 Nev. 156, 1966 Nev. LEXIS 209

• Court: Nevada Supreme Court
• Decided: April 22, 1966
• Docket: 5047
• Status: Published

Opinions

OPINION

By the Court,

Thompson, J.:

This appeal is from an order denying post conviction relief on a petition for habeas corpus. The petitioner had pleaded guilty to the crime of embezzlement. Sentence was imposed, its execution suspended, and the petitioner placed on probation. He was later brought before the court for having violated the conditions of probation. Probation was revoked and the petitioner imprisoned. The issue in this habeas proceeding is whether the petitioner should be released from prison because he was not represented by counsel when brought before the court on the proceeding to revoke his probation. The petitioner is an indigent. We rule that a court need not appoint counsel for an indigent on a proceeding to revoke probation, and affirm the order below.

The extraordinary remedy of habeas corpus is appropriate to test the legality of a conviction which is challenged on constitutional grounds. Dean v. Fogliani, 81 Nev. 541, 407 P.2d 580 (1965); Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965). Here, of course, the constitutionality of the underlying conviction is not questioned. The petitioner’s guilt of the underlying crime was constitutionally established. On a proceeding to revoke probation, the court is not concerned with the probationer’s guilt or innocence of the underlying crime. Rather, its sole concern is whether the privilege of probation should be revoked because of the failure to meet the conditions imposed. And, if revocation is ordered, the sentence he is required to serve is punishment for the underlying crime rather than for his failure to comply with the terms of probation. Brown v. Warden, U.S. Penitentiary, 351 F.2d 564 (7th Cir. 1965). For these reasons, decisions regarding the federal constitutional right to counsel at various stages of a criminal prosecution are not controlling. Cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In the cases just cited, the denial of counsel was deemed to have destroyed the validity of the conviction. That consideration is not present on a proceeding to revoke probation.

In the federal law, probation is a privilege granted by Congress. The source of the probationer’s privilege is to be found in the Federal Probation Act. One convicted of crime is not given a right to probation by the federal constitution. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932); Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935); Brown v. Warden, U.S. Penitentiary, supra; Welsh v. United States, 348 F.2d 885 (6th Cir. 1965); United States v. Huggins, 184 F.2d 866 (7th Cir. 1950); Gillespie v. Hunter, 159 F.2d 410 (10th Cir. 1947); Bennett v. United States, 158 F.2d 412 (8th Cir. 1946). Accordingly, the rights of an offender in a proceeding to revoke his conditional liberty under probation or parole are not coextensive with the federal constitutional rights of one accused in a criminal prosecution. Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963); Richardson v. Markley, 339 F.2d 967 (7th Cir. 1965); Brown v. Warden, U.S. Penitentiary, supra.

We think that the same reasoning applies to probation in Nevada. One convicted of crime is not given a right to probation by the Constitution of Nevada. Art. 5, § 14, empowers the legislature to “pass laws conferring upon the district courts authority to suspend the execution of sentences, fix the conditions for, and to grant probation, and within the minimum and maximum periods authorized by law, fix the sentence to be served by the person convicted of crime in said courts.” In line with that authority, the legislature provided for probation. The probationer’s rights, therefore, must be found within the legislative expression and not elsewhere. Cf. Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960), where we held that parole was not a constitutional right but, rather, a right bestowed by legislative grace; Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965), wherein we intimated as much with regard to probation. New Mexico has ruled otherwise, expressing the view that due process requires that an indigent probationer be furnished counsel. Blea v. Cox, 75 N.M. 265, 403 P.2d 701 (1965). Though that point of view has appeal, we cannot accept it. Probation is a privilege legislatively given, and without constitutional implications. One is not deprived of his liberty without due process of law when he has pleaded guilty to the charge against him and does not question the validity of his conviction. He might have been imprisoned forthwith. By reason of legislative provision, he was afforded an opportunity to gain conditional liberty on probation. People v. Dudley, 173 Mich. 389, 138 N.W. 1044 (1912). Neither the federal constitution nor the Nevada constitution contains a specific provision designed to safeguard the rights of a convicted defendant whose case has become res judicata. As we find no federal or state constitutional right to counsel in a proceeding to revoke probation, we turn to consider whether such a right is given by statute.¹

The statutory command is that the court “shall cause the defendant to be brought before it.” Counsel is not expressly provided for and funds have not been appropriated for counsel if the probationer is destitute. Cf. Hoffman v. State, 404 P.2d 644 (1965), where the Alaska Supreme Court held that equal protection required appointment of counsel for an indigent to avoid discrimination on the ground of poverty where the state statute specifically provided for right to counsel on proceedings for revocation of probation. In Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), Justice Cardozo stated the aim of a revocation hearing under the federal act which required the probationer to “be taken before the court” for the district having jurisdiction over him. He wrote: “* * * there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper.” A trial in the formal sense is not required. The inquiry to which the court referred in Escoe v. Zerbst, supra, is conducted by the court. This, we think, is likewise the kind of an inquiry contemplated by the Nevada statute. Accord: Thomas v. Maxwell, 175 Ohio St. 233, 193 N.E.2d 150 (1963); People v. Hamilton, 263 N.Y.S.2d 658 (1965); Kennedy v. Maxwell, 176 Ohio St. 215, 198 N.E.2d 658 (1964). Though it may be desirable for the legislature to provide for counsel to represent probationers, it has not done so. As probation is a matter of legislative grace, we are not at liberty to add requirements.

Affirmed.

Zenoff, D. J., concurs.

1 The pertinent statutes read: NRS 176.300(1), “Whenever any person has been found guilty in a district court of the State of Nevada of a crime upon verdict or plea, the court, except in cases of murder of first or second degree, kidnaping, robbery or rape, other than statutory rape, may by its order suspend the execution of the sentence imposed and grant such probation to the convicted person as the judge thereof shall deem advisable. The court may grant probation to a person convicted of the infamous crime against nature or of lewdness only if a certificate of a psychiatrist, as required by NRS 201.190, 201.210 or 201.230, is received by the court.”

NRS 176.330(1), “The period of probation or suspension of sentence may be indeterminate or may be fixed by the court and may at any time be extended or terminated by the court. Such period with any extensions thereof shall not exceed 5 years.

NRS 176.330(2), “At any time during probation or suspension of sentence, the court may issue a warrant for violating any of the conditions of probation or suspension of sentence and cause the defendant to be arrested. Any parole and probation officer or any peace officer with power to arrest may arrest a probationer without a warrant, or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the probationer has, in the judgment of the parole and probation officer, violated the conditions of probation. The parole and probation officer, or the peace officer, after making an arrest shall present to the detaining authorities a statement of the circumstances of violation. The parole and probation officer shall at once notify the court of the arrest and detention of the probationer and shall submit a report in writing showing in what manner the probationer has violated the conditions of probation. Thereupon, or upon an arrest by warrant as herein provided, the court, or such other court to which the case may have been assigned, shall cause the defendant to be brought before it, and may continue or revoke the probation or suspension of sentence, and may cause the sentence imposed to be executed.”