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, Judge presiding.
Counsel of Record:
For Petitioner:
Peter M. Meloy argued, Helena, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Charles Graveley, County Attorney, Helena, Montana
Nick A. Rotering argued, Helena, Montana
Submitted: May 4, 1978
Filed:
@AV a 1
I- 7478
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
his is an original proceeding 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 left Montana shortly thereafter, without
the permission of his parole officer, but returned upon being told
by his parole officer that he would not be charged with a parole
violation for leaving the state. Petitioner then enrolled in a
concentrated employment program in Helena.
Petitioner was 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. Petitioner was returned
to the state prison.
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. Petitioner did 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. Petitioner was
returned to custody at the state prison following that trial.
On ~ p r i l25, 1977, Lopez petitioned this Court for a writ
of habeas corpus. We remanded the petition to the District Court,
~ewisand Clark County, for hearing and determination. Following
a hearing, by order filed August 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 to parole
status pending that hearing. Petitioner then filed an appeal with
this Court challenging the District Court's denial of his petition
for release to parole status pending 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 several delays,
petitioner appeared before the Board of Pardons for the hearing on
the merits of his parole revocation. The Board found there was
insufficient evidence to warrant revocation and voted to restore
petitioner's parole. However, the Board did not release petitioner
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. There was
some opposition, apparently from law enforcement authorities from
Missoula and Lewis and Clark Counties, to petitioner being pa-
roled in Montana, and the Board therefore suggested he submit an
out-of-state parole plan.
On April 6, 1978, petitioner filed a second petition for a
writ of habeas corpus with this Court, alleging his continued deten-
tion is illegal. Petitioner contends he is entitled to immediate
release from custody and return to parole status. Respondent De-
partment of Institutions contends the state has the power to keep
petitioner in custody until he submits an acceptable new parole
plan.
Both sides concede the Board of Pardons and the Department
of Institutions have broad discretionary powers regarding parole
matters. Parole is a matter of grace, not of right, and whether
a convict is behind walls or walking the streets on parole, he
remains subject to the sentence imposed and to the regulatory ac-
tion 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 regulation and 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 condition parole
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 revocation hear-
ing, has been bound by the Board of Pardons not to have violated
his parole may nevertheless be confined pending submission of an
acceptable new parole plan.
In Morrissey v. Brewer, (1972), 408 U.S. 471, 92 S.Ct. 2593,
33 L Ed 2d 484, the Supreme Court of the United States held 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 supporting due
process protections, stating:
"* * * the liberty of a parolee, although
indeterminate, includes many of the core
values of unqualified liberty and its termina-
tion 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 revoke petitioner's parole establishes that his "indeter-
minate liberty" should be restored. Respondents' argument that
petitioner must first submit an acceptable parole plan is not
wholly without merit. However, under the circumstances, peti-
tioner should not have to carry that burden alone. The parole
authorities have, in this case, an affirmative duty to actively
aid petitioner in developing a realistic, acceptable plan. It
is
must be recognized that petitioner/ in prison only because the
authorities made 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 for petitioner.
If at the end of thirty days such plan has not been approved and
the petitioner released, petitioner is ordered released from pri-
son, with the authorities ordered to supervise the out-of-prison
activities of petitioner commensurate with his status as a parolee.
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We Concur: