Paroles, Revocation

Subject:

Paroles, Revocation; G.S. 148-62

Requested By:

Jack Scism, Chairman North Carolina Parole Commission

Questions:

(1)

May the Parole Commission in a parole revocation hearing accept a Judgment and Commitment from the Superior Court as sufficient evidence to establish that the parolee committed a new crime on parole, even though at the time of the revocation hearing the conviction may be on appeal?

(2)

If the Judgment and Commitment is sufficient evidence to establish the parolee’s participation in the crime which constitutes a violation of his parole, is it necessary at the revocation hearing to permit him to contest his participation in the offense?

Conclusions:

(1)

The Parole Commission may accept a Judgment and Commitment from a superior court as evidence that a parolee has committed a new crime while on parole and such evidence is sufficient in itself to support parole revocation.

(2)

It is not necessary to permit the parolee to contest his participation in the offense when the Parole Commission relies on a conviction of a felony committed while on parole even though the parolee may have pleaded not guilty to the offense. However, the parolee must still be given an opportunity to present matters in mitigation.

The United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972) held that the Due Process Clause of the Fourteenth Amendment is applicable to parole revocation hearings and that for the parolee has a constitutionally protected liberty interest in his condition freedom. Id. at

482. The Morrissey opinion dealt with two parole revocations based on "technical violations," i.e., violations of the conditions of parole not involving criminal offenses, or at least not involving convictions for offenses committed while the parolees were on parole.

Without discussing here the full due process requirements set forth in Morrissey, that case calls for a two-stage revocation process. The first stage is the preliminary hearing to establish whether there is probable cause to revoke parole. This hearing is to be before an independent officer "at or reasonably near the place of the alleged violation or arrest and as promptly as convenient after arrest." Id. at 485. The hearing may be wholly informal, but the parolee does have a limited right of confrontation. Id. at 487.

The second stage of the revocation proceeding is the formal revocation hearing. At the hearing before the parole authority it must be determined whether or not a parole violation has in fact occurred and whether the violation warrants revocation. The parolee must be permitted either to present evidence that he did not violate his parole or that notwithstanding a violation, there are circumstances mitigating the violation so that revocation ought not to be ordered.

In Gagnon v. Scarpelli, 411 U.S. 778 the Supreme Court extended the principles in Morrissey to probation revocations. The court said: "Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one." Id. at 782. Thus, principles of law applicable to a probation revocation hearing are equally applicable to that of parole.

Turning to the first question specifically, most federal and state cases indicate that the necessity of the preliminary hearing is obviated by a parolee’s or probationer’s conviction of a new crime while on parole or probation. See United States v. Tucker, 524 F.2d 77 (5th Cir. 1975); Pavia v. Hogan, 386 F.Supp. 1379 (N.D. Ga. 1974); Dereczyski v. Longo, 368 F.Supp. 682 (N.D. Ill. 1973); Commonwealth v. Davis, 234 Pa. Super 31, 336 A.2d 616 (1975); In Re Law, 10 Cal. 3d 31, 513 P.2d 621, 109 Cal. Rptr. 573 (1973).

With respect to the type of evidence a court may consider in a probation revocation hearing, the Supreme Court of North Carolina has held that there is no reversible error committed even if inadmissible evidence is considered as long as there is some competent evidence to support the decision to revoke probation. State v. Hewett, 270 N.C. 348 (1967). The violation need not be as to reasonably satisfy the judge that a violation has occurred. State v. Coffey, 255 N.C. 293, 299 (1961). The same standard should apply to parole revocations.

The United States Supreme Court and lower federal courts have made it clear that the formal rules of evidence are not not required by the federal Constitution. As the Supreme Court noted in Morrissey; supra:

We emphasize that there is no thought to equate (the final) stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial. (408 U.S. at 489)

A number of courts have held that the exclusionary rule regarding evidence unlawfully seized and thus inadmissible in a criminal trial does not apply to parole and probation revocation hearings. See U.S. v. Vandemark, 522 F. 2d 1019 (9th Cir. 1975), and cases there cited.

A Judgment and Commitment order is competent evidence of a conviction and the court may take judicial notice thereof. State v. Hill, 266 N.C. 107 (1965). Similarly the Parole Commission may take judicial note of official records of court convictions. Clearly such evidence is then competent to support revocation

Further the plain language of N.C.G.S. 148-62 indicates that a conviction will support revocation: If any parolee, while being at large upon parole, shall commit a new or fresh crime, and shall enter a plea of guilty or be convicted thereof in any Court of record, then, in that event, his parole may be revoked according to the discretion of the Parole Commission. . . .

The Supreme Court of this State has ruled that probation revocation may be based solely on an intervening conviction. State v. Brown, 253 N.C. 195 (1940); State v. Hill, supra. Federal cases also have held that an intervening conviction is a sufficient basis for revocation. McGee v. Warden, U.S. Penitentiary, 395 F.Supp. 181 (1975); Gardner v. McCarthy, 503 F.2d 733 (9th Cir. 1974).

With regard to the fact that an appeal may be pending from the conviction which was the basis of the revocation, the Court in Hill held that:

The Conviction of defendant on May 4, 1965 in the Hiatt assault case and the judgment pronounced therein were sufficient to support said judgment of May 5, 1965, putting into effect the suspended sentence, unless on appeal the judgment in the Hiatt assault case was reversed or a new trial granted. (266 N.C. at 111)

The present practice of the Parole Commission to review the revocation in the event of reversal or on order of a new trial on appeal appears to be in accord with the Court’s direction in State v. Hill. Upon a reversal an independent finding of violation would have to be made. The Parole Commission could use the record of the trial in making its determination to the extent that that record provides competent evidence and that the evidence is such that one could reasonably reply upon it.

For somewhat analogous probation revocation cases in which the conviction that was the basis of the revocation action was subsequently reversed, see 4 N.C. Index 3d, Criminal Law § 143.8.

Therefore, both federal and state court cases, including the North Carolina case of State v. Hill, supra, and the language of G.S. 148-62, indicate that the Parole Commission may base a parole revocation on a verified conviction in Superior Court arising out of an offense committed during the period of parole. The fact that an appeal may be pending would not affect the validity of the revocation, but a successful appeal would require further action by the Parole Commission.

For the reasons stated above, the parolee need not be permitted to relitigate his conviction. As the Supreme Court clearly noted in Morrissey: "Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when revocation is based on conviction of another crime."

However, the fact that the Parole Commission relies on an intervening conviction does not obviate the necessity for the final hearing before the Parole Commission. The Supreme Court held in Morrissey, supra that the hearing has a dual purpose.

The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? (408 U.S. at 479, 480)

The Court further said:

The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or if he did, that circumstances in mitigation suggest that the violation does not warrant revocation. (Emphasis supplied.) (408 U.S. at 488)

Therefore, when the revocation proceeding is based on a criminal conviction it seems clear that a final hearing before the Commission still must be held to allow the parolee to present matters in mitigation although he may not relitigate his conviction. The opportunity to offer evidence of mitigating circumstances apparently should be afforded even though the intervening conviction was for a serious felony conviction.

Rufus L. Edmisten Attorney General

James Peeler Smith Assistant Attorney General