Commonwealth ex rel. Rambeau v. Rundle , 455 Pa. 8 ( 1973 )

Opinion by

Mr. Justice O’Brien,

Each of these cases, which were consolidated on appeal, presents a challenge to the procedures by which the Commonwealth revokes parole and recommits a parolee who has been convicted of a crime committed while on parole.

Appellant Emanuel Collins (Collins) pled guilty on October 5, 1964, to various counts of assault and battery, assault and battery with intent to ravish, and burglary. He was sentenced to a term of three to six years’ imprisonment. At the expiration of his three-year minimum, Collins was paroled, but on June 11, 1970, while on parole, Collins was arrested for possession of narcotics. On November 7, 1970, he was convicted of the charge of possesion of narcotics and was given a probationary sentence. On December 3, 1970, the parole board, without a hearing, recommitted Collins as a convicted parole violator and he was incarcerated to serve the three remaining years of the sentence on his 1964 conviction. He was given no credit for time spent on parole under the supervision of the Board.

Appellant Peter L. Rambeau (Rambeau) was sentenced to five to ten years as a result of convictions on various charges on May 29, 1961. The sentence was effective March 8, 1961, making the expiration dates of his minimum and maximum sentences March 8, 1966 and March 8, 1971, respectively. He was paroled on March 8, 1966, but subsequently arrested on March 1, 1967, and convicted on June 5, 1967, on another charge. He was sentenced to one to two years on that charge. As a result of that conviction, a hearing was held before one member of the parole board and Rambeau, unrepresented by counsel, was recommitted as a convicted parole violator on July 12, 1967, and the maximum expiration date was extended to June 5, 1972. Like Collins, Rambeau was given no credit for the time spent on parole under the supervision of the Board.

Collins’ case was transferred to us from the Superior Court, where he had taken his appeal from the denial of his Post Conviction Hearing Act petition challenging the parole board’s action. Rambeau’s case comes to us on direct appeal from the order of the Commonwealth Court dismissing the action of mandamus he brought in that court challenging the parole board’s action.

Each appellant raises a challenge to the constitutionality of the Commonwealth’s interpretation of the Act of August 6, 1941, P. L. 861, §21.1, added August 24, 1951, P. L. 1401, §5, as amended June 28, 1957, P. L. 429, §1, 61 P.S. 331.21a, so as to deny a convicted parole violator the right to a hearing where he would be represented by counsel before his parole can be revoked.¹

The statute in question reads as follows: “(a) Convicted Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution of the Commonwealth who, during the period of parole or while delinquent on parole, commits any crime punishable by imprisonment, for which he is convicted or found guilty by a judge or jury or to which he pleads guilty or nolo contendere at any time thereafter in a court of record, may, at the discretion of the board, be recommitted as a parole violator. If his recommitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credit for the time at liberty on parole. The board may, in its discretion, reparole whenever, in its opinion, the best interests of the prisoner justify or require his release on parole and its [sic] does not appear that the interests of the Commonwealth will be injured thereby. The period of time for which the parole violator is required to serve shall be computed from and begin on the date that he is taken into custody to be returned to the institution as a parole violator.”

While it is true that the statute, by its language, does not explicitly provide that convicted parole violators receive a hearing before parole is revoked, as distinguished from the hearing provided to technical parole violators by §(b) of the same statute, 61 P.S. 881.21a (b), this is not simply a question of statutory interpretation. A hearing is required before parole is revoked as a matter of constitutional due process for convicted parole violators as well as technical parole violators.

In so ruling, we now overrule our decision in Commonwealth ex rel. Thomas v. Myers, 419 Pa. 577, 581 215 A. 2d 617 (1966), where we cited Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 79 L. Ed. 1566 (1935), for the proposition that: “. . . one on parole has no constitutional right to a hearing prior to the revocation of parole, and that whatever right exists in a particular jurisdiction derives solely from the existence of statutory provisions requiring a hearing.”

The analysis contained in Escoe v. Zerbst, supra, to the effect that there is no constitutional right to a hearing upon revocation of parole because “probation or suspension of parole comes as an act of grace to one convicted of a crime,” was rejected by the United States Supreme Court in its recent opinion in Morrissey and Booher v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593 (1972), where the court, per Chief Justice Burger, held that a hearing was required before parole was revoked. As the court explained:

“As Mr. Justice Blackmun has written recently, ‘This Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a “right” or as a “privilege”.’ Graham v. Richardson, 403 U.S. 365, 374 (1971). Whether any procedural protections are due depends on the extent to which an individual will be ‘condemned to suffer grievous loss.’ Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263 (1970). The question is not merely the ‘weight’ of the individual’s interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67 (1972). Once it is determined that due process applies the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. ‘[Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the governmental function involved as well as of the private interest that has been affected by governmental action.’ Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961). To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.

“We turn to an examination of the nature of the interest of the parolee in his continued liberty. The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement to a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases the parolee faces lengthy incarceration if his parole is revoked.

“We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee’s liberty is a ‘right’ or a ‘privilege’. By whatever name the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.

“Turning to the question what process is due, we find that the State’s interests are several. The State has found the parolee guilty of a crime against the people. That finding justifies imposing extensive restrictions on the individual’s liberty. Release of the parolee before the end of his prison sentence is made with the recognition that with many prisoners there is a risk that they will not be able to live in society without committing additional antisocial acts. Given the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.

“Yet the State has no interest in revoking parole without some informal procedural guarantees. Although the parolee is often formally described as being ‘in custody’, the argument cannot even be made here that summary treatment is necessary as it may be Avith respect to controlling a large group of potentially disruptive prisoners in actual custody. Nor are we persuaded by the argument that revocation is so totally a discretionary matter that some form of hearing would be administratively intolerable. A simple factual hearing will not interfere with the exercise of discretion. Serious studies have suggested that fair treatment on parole revocation will not result in fewer grants of parole. . . .”

The Commonwealth argues that since there is no question but that both appellants were convicted of crimes committed while on parole, the parole board has no discretion as to the length of time of incarceration. Consequently, there is nothing to hold a hearing about because there is no pertinent evidence to introduce. However, although the length of time of any incarceration imposed by the Board is automatic, the fact of incarceration itself is not. Whether a convicted parole violator is to be recommitted by the Board is left to the discretion of the Board. Act of August 6, 1941, P. L. 861, §21.1, as amended, Act of June 28, 1957, P. L. 429, §1, 61 P.S. §331.21a.

The need for a hearing is in no way eliminated by the existence of a conviction of record. The Parole Board, in the exercise of its discretion granted by statute, should hear relevant facts or circumstances, outside the record of the conviction, which will enable them to make the difficult judgment involved. See Commonwealth ex rel. Hendrickson v. State Board of Parole, 409 Pa. 204, 185 A. 2d 581 (1962). In Mays v. Nelson, 323 F. Supp. 587 (N.D. Calif. 1971), the court held that parolees were entitled to the assistance of counsel at a parole revocation hearing and aptly observed :

“Respondent argues that in this case such procedural requirements are completely unnecessary as all the facts had been presumably ‘tried’ in a court of law attendant with all elements of due process. To compel the Adult Authority to hold another factual hearing, he argues, would be a needless retrial of the same facts.

“This line of reasoning, while superficially sound, fails to recognize a significant factor. At his state trial for disturbing the peace, the kinds of ‘proof’ he later wanted to present could have had no effect on the outcome of the trial. The mitigating fact that the incident was a family quarrel and that new living arrangements had been made could have no effect on the ultimate finding of guilt or innocence. Also the misinformation regarding the supposed charge of assault with a deadly weapon played no part in his criminal trial. Thus, even assuming petitioner had had a full trial on the facts in state court, rather than conviction after a simple guilty plea, the facts relevant to a determination of his parole status would not have come to light.” Id. at 589 (emphasis in original); accord Hewett v. North Carolina, 415 F. 2d 1316, 1324 (4th Cir. 1969). Hewett, in recognizing the right to counsel at a probation hearing, rejected any distinction regarding due process rights between a technical and a convicted probation violator and asserted: “. . . substantial rights are litigated in every North Carolina revocation of probation proceeding, irrespective of the preciseness of the claimed violation or the complexity of the factual inquiry.” Id. at 1324. See also Gunsolus v. Gagnon, 454 F. 2d 416 (7th Cir. 1971), and Hahn v. Burke, 430 F. 2d 100, 104 (7th Cir. 1970).

Appellants also contend that they are entitled to the assistance of counsel at their parole revocation hearings. We agree. It is well-settled that the assistance of counsel “. . . is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 257 (1967); accord Coleman v. Alabama, 399 U.S. 1, 7, 90 S. Ct. 1999, 2002 (1970).² Argersinger v. Hamlin, 407 U.S. 25 (1972).

Consequently, there can be no doubt that these appellants are entitled to representation by counsel at the hearings which must be held. In Mempa, supra, the Supreme Court held that counsel was required at a hearing at which his probation is revoked and sentence is imposed because it was a “critical stage” in the proceedings. We have already held, in Commonwealth v. Johnson, 428 Pa. 210, 236 A. 2d 805 (1968), that the initial sentencing by the court is a critical stage in the criminal proceeding at which a defendant is entitled to counsel and a chance to present evidence in his behalf. What we said in Johnson is also pertinent to the instant case: “Initially, the Commonwealth contends that this proceeding was so ministerial and formalistic that it was not such a critical stage as to require the presence of counsel. With this position we cannot agree. Although it may he true that in the present case nothing was said on appellant’s behalf at the October 19th proceeding, we would be loathe to hold that nothing of aid to the client could have been said by counsel. Perhaps just a few words, if spoken effectively enough, might have persuaded the court to reconsider its finding of murder in the first degree, particularly since the court realized that the facts closely approximated second degree murder, and in fact suggested that appellant might be paroled at the end of twenty years. To say that this proceeding, the very last contact appellant had with the court before his cell door slammed shut, perhaps for life, is not a critical stage of the litigation, substantially affecting [appellant’s] rights, is to completely ignore reality.” (Emphasis in original.) At Pages 215-216.

We held in Commonwealth ex rel. Remeriez v. Maroney, 415 Pa. 534, 204 A. 2d 450 (1964), that a defendant is entitled to counsel at a hearing before being sentenced to imprisonment after revocation of a prior suspended sentence and probation. Recently we extended the same procedural rights to the revocation of parole of a technical parole violator. Commonwealth v. Tinson, 433 Pa. 328, 249 A. 2d 549 (1969).

Just as the aid of counsel might be crucial to a defendant in the position of Johnson, Remeriez or Tin-son, so, too, the aid of counsel could be crucial to a defendant in the position of the appellants in the instant cases. If there exist mitigating circumstances surrounding the offenses which they committed while on parole, an attorney’s aid could be crucial to develop these circumstances before the Board. See Mempa v. Rhay, supra, at 135, where the court described the “. . . necessity for the aid of counsel in marshalling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence. . . .”

Appellants also contend that the provision prohibiting the parole board from crediting them with the time they spent at liberty on parole constitutes double jeopardy in violation of the Constitution. According to Rambeau’s argument, the time which appellants spent at liberty on parole was clearly “punishment” since the liberty was restricted by the rules and regulations of the parole board. According to Collins, this provision constitutes a bill of attainder because the Board is, in effect, extending appellant’s sentence without trial. We are unpersuaded, and adhere to the decision we last reached in Commonwealth ex rel. Thomas v. Myers, supra, for the reasons stated therein.

Since we have determined that the appellants are entitled to hearings at which they must be represented by counsel, we must also determine whether, as appellant Rambeau contends, a quorum of the parole board must be present in order to insure that the hearing is valid.

The Commonwealth Court relied on the Act of August 6, 1941, P. L. 861, §22, 61 P.S. 331.22, which provides: “In granting and revoking paroles, and in discharging from parole, the members of the board acting thereon shall not be required to personally hear or see all the witnesses and evidence submitted to them for their action, but they may act on report submitted to them by their agents and employes, together with any pertinent and adequate information furnished to them by fellow members of the board or by others.”

However, the United States Supreme Court’s opinion in Morrissey and Booher v. Brewer, supra, seems to indicate that although the entire parole board need not be present at an initial hearing held to provide an independent “evaluation of whether reasonable cause exists to believe that tbe conditions of parole bave been violated,”³ a second bearing, denoted “Tbe Bevocation Hearing” in Morrissey, requires that tbe whole board be present.

Tbe Supreme Court described tbis bearing as follows: “There must also be an opportunity for a bearing, if it is desired by tbe parolee, prior to tbe final decision on revocation by tbe parole authority. Tbis bearing must be tbe basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether tbe facts as determined warrant revocation. Tbe parolee must bave an opportunity to be beard and to show, if be can, that be did not violate tbe conditions, or, if be did, that circumstances in mitigation suggest tbe violation does not warrant revocation.” 408 U.S. at 487,88.

Although tbe court malees clear that it did not intend to write a specific code of procedure, it does state that tbe minimum requirements of due process include: “(c) opportunity to be beard in person and to present witnesses and documentary evidence.” (Emphasis added). 408 U.S. at 489. It seems elementary that tbe right to be beard in person becomes meaningless unless tbe convicted parole violator is beard personally by tbe people who must make tbe decision regarding bis re-commitment, i.e., tbe entire parole board, not by some third party, or by only one member, who then relates tbe convicted violator’s case, second band, to tbe rest of tbe board.

Orders reversed and cases remanded for new revocation bearings consistent with tbis opinion.

1 Although Rambeau was given a hearing before his parole was revoked, the Commonwealth contends that he was not constitutionally entitled to counsel because the hearing itself was not constitutionally required.

2 In Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970), the United States Supreme Court held that a preliminary hearing is a “critical stage” and thus a defendant is entitled to court-appointed counsel. Surely if counsel is constitutionally required at a preliminary hearing, where defendant is not faced with a possible deprivation of liberty, it becomes even more compelling that he have the assistance of counsel during the “critical stage” of a parole revocation hearing, where defendant faces an imminent deprivation of liberty.

3 Of course, in the case of convicted parole violators, as distinguished from technical violators, no such initial hearing need be held because their trials, at which they were convicted of committing crimes while on parole, serve the same purpose.