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Gunsolus v. Gagnon

December 28, 1971

JAMES C. GUNSOLUS, PETITIONER-APPELLANT,
v.
JOHN R. GAGNON, WARDEN, RESPONDENT-APPELLEE. VERN LEVI FINK AND THOMAS F. HOPPE, PETITIONERS-APPELLANTS, V. ELMER O. CADY, WARDEN, RESPONDENT-APPELLEE. GERALD H. SCARPELLI, PETITIONER-APPELLEE, V. JOHN R. GAGNON, WARDEN, RESPONDENT-APPELLANT



Fairchild and Sprecher, Circuit Judges, and Campbell, Senior District Judge.*fn1

Author: Fairchild

FAIRCHILD, Circuit Judge.

These consolidated appeals raise several questions of importance concerning the probation revocation process in Wisconsin. In Hahn v. Burke, 430 F.2d 100 (7th Cir., 1970), cert. den. 402 U.S. 933, 91 S. Ct. 1522, 28 L. Ed. 2d 868, this court held that basic requirements of due process entitle a probationer to a hearing before his probation is revoked. These appeals present the related issues of (1) whether Hahn should be applied retroactively, (2) whether the probation revocation hearing must be judicial, or whether an administrative hearing will suffice, (3) whether retained counsel must be allowed to participate in the probation revocation hearing, and (4) whether indigents are entitled to the appointment of counsel to assist them at the hearing.

The basic factual pattern with respect to all four petitioners involved in the instant appeals is as follows: Petitioners were convicted of felonies in various Wisconsin courts outside of Milwaukee county and sentenced to terms of imprisonment. Execution of sentence was stayed and petitioners placed on probation in the custody of the Wisconsin Department of Health and Social Services. Each petitioner was alleged later to have committed some act or acts which violated a condition of his probation. Thereupon, the department revoked probation and petitioners were incarcerated to serve the full term of the sentence previously imposed. No hearing was conducted for any petitioner before probation was revoked. Revocation of probation with respect to all petitioners occurred prior to our ruling in Hahn. Each petitioner exhausted his state habeas corpus remedies and then sought federal habeas corpus. Each federal petition was filed prior to our ruling in Hahn. The district court denied the petitions of petitioners Fink, Hoppe, and Gunsolus in orders which pre-dated Hahn. In the case of Scarpelli, the district court ruled, after our decision in Hahn, that petitioner was entitled to a hearing prior to probation revocation and entitled to appointment of counsel for such hearing. The district court opinion is reported at 317 F. Supp. 72 (E.D.Wis., 1970).

Nos. 18501 and 18502, Fink and Hoppe

In April, 1969 petitioners Fink and Hoppe were convicted of burglary and sentenced to indeterminate terms of not more than 4 and 3 years respectively. Execution of sentence was stayed and petitioners placed on probation to the department. As one condition of probation, each petitioner was to remain in the custody of the sheriff for one year during the time he was not employed. During this year, the department decided that each had violated this condition by absenting himself from jail "under deceptive and improper circumstances." Thereupon the department revoked probation.

No. 18523, Gunsolus.

Petitioner Gunsolus was convicted of theft and sentenced to a term of not more than 3 years imprisonment. Execution of the sentence was stayed and petitioner placed on probation for a period of 2 years, upon the condition, inter alia, that he spend his non-working hours in jail for the first six months. During this period the department decided that petitioner had absconded, and revoked probation.

No. 18875, Scarpelli.

In July, 1965 petitioner Scarpelli was convicted of armed robbery and sentenced to imprisonment for an indeterminate term not to exceed 15 years. Execution of the sentence was stayed and petitioner placed on probation for a period of 7 years. In September, 1965, the department decided that he had associated with known criminals and had been involved in a burglary. The department revoked probation. At the time of the filing of his petition for writ of habeas corpus, petitioner was incarcerated in a Wisconsin prison. On June 4, 1969 petitioner was paroled to a federal detainer. Petitioner is thus currently a parolee of the state of Wisconsin incarcerated in a federal prison. We agree with the district court that petitioner's parole does not moot this petition.

Retroactivity of Hahn v. Burke.

In Hahn v. Burke we held that constitutional dictates of due process require a state to hold a hearing before revoking probation. The state urges us to limit the effect of this holding to only those probation revocations which occur after the date of Hahn, August 19, 1970.

In Stovall v. Denno*fn2, the Supreme Court listed the criteria for determining the extent to which changed interpretations of the constitution with respect to criminal procedure should be applied retroactively. They are as follows: "(a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of the new standards."

Although Mempa v. Rhay*fn3 requiring that counsel be made available at a revocation hearing which culminates in sentencing has been given full retroactive application*fn4 it does not necessarily follow that the Hahn requirement of a revocation hearing where revocation ...


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