NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 28240
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
This appeal arises from a petition for release from custody (Petition) that Petitioner-Appellant De Mont R. D. Conner (Conner or Petitioner) filed in the Circuit Court of the First Circuit (circuit court) on March 30, 2006 pursuant to Hawai‘i Rules of Penal Procedure (HRPP) Rule 40. The Petition alleged that Respondents-Appellees Hawaii Paroling Authority (HPA) and Cory Reincke (Reincke), Conner's parole officer; and Respondent Carol Tyler (Dr. Tyler), Conner's treating psychologist, (collectively, Respondents) arbitrarily and capriciously revoked Conner's parole, absent a clear violation by Conner of the terms and conditions of his parole, and thereby violated Conner's rights under the due process clause of the Fourteenth Amendment to the United States Constitution (Ground 1), the equal protection clause of the Fourteenth Amendment to the United States Constitution (Ground 2), and the Eighth Amendment to the United States Constitution (Ground 3).
Conner appeals from the findings of fact, conclusions of law, and order entered by the circuit court (1) on September 28, 2006 (September 28, 2006 Order), summarily denying Grounds 1 and 2 of his Petition and ordering that Ground 3 of the Petition, to the extent that it requested relief based on a civil claim, be transferred to the circuit court civil calendar for disposition under the civil rules. On appeal, Conner raises the following issues:
(1) The HPA acted arbitrarily and capriciously in revoking his parole for "[f]ailure to participate in sex offender therapy until clinically discharged" because he did not willingly violate the terms of his parole by failing to participate in treatment; rather, he was precluded by Dr. Tyler, for baseless reasons, from participating in treatment.
(2) The circuit court erred in denying his Petition without a hearing.
We conclude that an evidentiary hearing was required as to Ground 1 of Conner's Petition. Accordingly, we vacate that part of the circuit court's September 28, 2006 Order that denied Ground 1 of Conner's Petition without a hearing and remand this case for further proceedings consistent with this opinion. In all other respects, we affirm the circuit court's September 28, 2006 Order.
BACKGROUND
A. Conner's, Conviction, Imprisonment, Parole, and Parole Revocation
On October 26, 2004, more than twenty years after his 1983 convictions for robbery, attempted murder, rape, sodomy, and kidnapping, Conner was released on parole by the HPA. On October 6, 2005, Conner was arrested for allegedly threatening and assaulting his stepson. On October 10, 2005, while in custody following his arrest, Conner was served with an HPA warrant of arrest (re-take warrant), which stated, in relevant part, as follows:To the High Sheriff of the State of Hawaii or his Deputy; the Sheriff of the city and county of Honolulu or his Deputy; or any law enforcement officer in any county or city and county of the State of Hawaii;
It is alleged that [Conner,] whose maximum parole term is LIFE , did violate the terms and conditions of parole dated 10/5/04 in the following manner:
The following notation appeared at the top of the re-take warrant: "THE PAROLEE SHALL NOT BE RELEASED FROM CONFINEMENT WITHOUT THE AUTHORIZATION OF THE HAWAII PAROLING AUTHORITY (HPA)[.]"
On October 14, 2005, Conner was served with: (1) a "Notice of Right to Pre-Revocation Hearing" (Pre-Revocation Hearing Notice), and (2) a "Notice of Hearing, Rights for Revocation Hearing and Request for Legal Counsel" (Revocation Hearing Notice). The Pre-Revocation Hearing Notice informed Conner, in relevant part, as follows:
You were arrested as a result of an investigation which disclosed that you violated your parole in the following manner:
Supporting
Evidence: On file is Chronological Entry dated October 7, 2005,
parole officer and Dr.
Carol Tyler discussed subject's
progress in treatment. Dr[.] Tyler is
concerned with subject
being suicidal and is a risk to the community. Subject must be
terminated
at this time.
If the hearing officer finds that there is probable cause or reasonable
grounds to believe that
you have committed acts which would
constitute a violation of your parole
conditions, you will
remain confined pending a hearing before the [HPA] of the alleged parole
violations.
You may waive your right to pre-revocation hearing. If you do so, you
will remain confined until
the [HPA] hears your case.
Further, having had explained to my satisfaction my right to waive a Pre-Revocation Hearing and what the result of such waiver means, namely continued confinement, the following is my decision relative to this matter:
3. I wish to have a Pre-Revocation Hearing. [ ] YES [x] NO
(Formatting adjusted.)The Revocation Hearing Notice informed Conner, in pertinent part, as follows:
You are charged with violating the terms and conditions of your parole in the following manner:
Supporting
Evidence: On file is Chronological Entry dated October 7, 2005,
parole officer and Dr.
Carol Tyler discussed subject's
progress in treatment.
Dr. Tyler is concerned with subject being
suicidal and is a risk to the community. Subject must be terminated
at this time.
[ ]You are hereby notified that the [HPA] will
hold a hearing on __________ 20___ at __________.m.
at the
____________________ to determine whether or not your parole should be
revoked as you were
found guilty of violation of
parole on _______________.
1. Consult with any person(s) you reasonably desire;
3. Have counsel appointed for you if you so request and cannot afford to retain counsel on your own;
5. Waive any of the above rights.
Conner acknowledged by his signature that after having received and read the Revocation Hearing Notice, or having had it read and explained to him, he fully understood the notice. He also checked off boxes on the notice to indicate that he "will obtain legal counsel of [his] choosing[,]" did not "wish to have assistance in acquiring legal services[,]" consented "to have the [HPA] release all pertinent information to legal counsel[,]" and wished "to personally appear at the hearing." Conner also checked off the "no" box after the following statement: "5. I do not wish to appear but I wish to have legal counsel appear in my behalf."By a Notice of Hearing dated November 4, 2005, the HPA notified Conner that his parole-revocation hearing was scheduled for Wednesday, December 7, 2005, at noon at the Halawa Correctional Facility. This hearing was subsequently rescheduled to January 4, 2006, apparently because Conner "want[ed] another attorney[.]"
Following a January 4, 2006 parole-revocation hearing at which Conner apparently represented himself, the HPA entered an order on January 12, 2006 (January 12, 2006 Order) that determined that Conner had violated the terms and conditions of his parole, as alleged; revoked Conner's parole for the balance of his maximum sentence; stated that the HPA's "[f]indings of guilt were based on [Conner's] pleas of guilty to the violation as charged"; and informed Conner that a "[h]earing for parole consideration will be scheduled July 2009."
On April 11, 2006, the HPA issued a "corrected copy" of the January 12, 2006 Order that substituted the basis for the HPA's "findings of guilt" with the following: "Finding of guilt was based on evidence provided by parole officer."
B. Conner's Rule 40 Petition
On March 30, 2006, prior to the HPA's issuance of the April 11, 2006 "corrected copy" of the order revoking Conner's parole, Conner filed his Petition, requesting that the circuit court reverse the HPA's decision, dismiss the alleged parole violation, and restore his parole status of October 5, 2005. In his Petition, Conner alleged numerous facts in support of his Petition, including the following:
9. By July, 2005, [Dr.] Tyler apparently concluded [Conner] had greatly benefited [sic] from the therapy sessions and thereupon reduced the frequency of [Conner's] therapy sessions from once a week to once a month.
11. [Conner's] last therapy session with [Dr.] Tyler occurred on October 3, 2005 and [Dr.] Tyler scheduled the next session for November 2005.
13. After the altercation, [Conner] was involved in an automobile accident as he drove toward his former foster parent's house. [Conner] was examined for injuries at Queen's Hospital and admitted to the psychiatric ward for observation and diagnosis.
15. On October 6, 2005, a Honolulu Police Officer arrested [Conner] on suspicion of assault and terrorist threatening arising from the altercation and transported [Conner] to the Honolulu Police Department cellblock.
17. Upon information and belief, the sole source of the "suicide attempt" information was a comment by a police officer at the scene of [Conner's] automobile accident, which comment was relayed to another police officer, who relayed the comment to Nancy Conner, who relayed the comment to [Dr.] Tyler.
19. On October 10, [Dr.] Tyler, without talking to [Conner] or notifying [Conner], terminated [Conner's] course of therapy. . . .
21. [Conner] first learned his therapeutic sessions with [Dr.] Tyler had been terminated when Respondent Reincke served [Conner] with the "Re-Take" warrant on October 10, 2005.
A. First Cause of Action
44. Respondents violated [Conner's] rights under the Due Process Clause of the 14th Amendment to the United States Constitution.
C. Third Cause of Action
55. Respondents violated [Conner's] rights under the [E]ighth Amendment to the United States Constitution.
57. Respondents caused [Conner] to suffer atypical and significant hardships by acting in concert to subject [Conner] to a grievous loss of freedom, loss of job, loss of good credit rating; loss of membership in a trade union; deprivation of therapy; loss of consortium and the benefits of family life; and loss of the opportunity to repair relationships with family members.
In its September 28, 2006 Order regarding Conner's Petition, the circuit court entered findings of fact that essentially summarized the procedural history of Conner's criminal cases that led to his imprisonment, subsequent parole, and parole revocation. The circuit court also entered the following relevant conclusions of law:1. HRPP Rule 40(c)(3) states:
2. Ground Three of [Conner's] Petition For Release From Custody Pursuant to Hawaii Rules of Penal Procedure Rule 40, which alleges, in part, that Dr. Tyler, Cory Reincke, and the HPA acted in concert to subject [Conner] to a grievous loss of freedom, loss of job, loss of good credit rating, loss of membership in a trade union, depravation [sic] of therapy, loss of consortium and the benefits of family life, and loss of the opportunity to repair relationships with family members, is a civil claim and is hereby transferred to the civil calendar for disposition.
4. Rule 40(g)(2) of the [HRPP] states:
5. A hearing on a HRPP Rule 40 Petition for Post-Conviction Relief should be held only when the petition states a colorable claim. Dan v. State, 76 Haw. 423 (1994).
Id. at 427, citing State v. Allen, 7 Haw. App. 89 (1987).
. . . .
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him [or her]; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Id. at 489.
. . . .
. . . .
22. [Conner's] Ground Two which alleges that [Conner's] right to equal protection was violated is without merit.
25. [Conner] is serving multiple terms of life imprisonment for a multitude of counts, including attempted murder and sexual offenses. [Conner] previously served multiple offenses of twenty years [sic] imprisonment for kidnapping, robbery and burglary. On October 6, 2005, while on parole, [Conner] was arrested for allegedly threatening his stepson, choking him and biting off part of his ear in FC No. 05-1-0019. Based on this behavior, Dr. Tyler terminated [Conner] from his sex offender treatment. The HPA revoked [Conner's] parole for failing to participate in sex offender treatment until clinically discharged.
(f) Hearings. If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held during the course of the proceedings which led to the judgment or custody which is the subject of the petition or at any later proceeding.
The de novo standard of review applies in determining whether a trial court erred in denying a petition for post-conviction relief without a hearing. Dan v. State, 76 Hawai‘i 423, 427, 879 P.2d 528, 532 (1994). In Dan, which involved a Rule 40 petition seeking relief from a judgment of conviction, the Hawai‘i Supreme Court adopted the analysis of the Intermediate Court of Appeals (ICA) in State v. Allen, 7 Haw. App. 89, 744 P.2d 789 (1987), to explain what is required in a de novo review of a trial court's failure to conduct a hearing on a Rule 40 petition:
As a general rule, a hearing should be held on a Rule 40 petition for post-conviction relief where the petition states a colorable claim. To establish a colorable claim, the allegations of the petition must show that if taken as true the facts alleged would change the verdict, however, a petitioner's conclusions need not be regarded as true. Where examination of the record of the trial court proceedings indicates that the petitioner's allegations show no colorable claim, it is not error to deny the petition without a hearing. The question on appeal of a denial of a Rule 40 petition without a hearing is whether the trial record indicates that Petitioner's application for relief made such a showing of a colorable claim as to require a hearing before the lower court.
As the ICA's analysis indicates, the appellate court steps into the trial court's position, reviews the same trial record, and redecides the issue. Because the appellate court's determination of "whether the trial record indicates that Petitioner's application for relief made such a showing of a colorable claim as to require a hearing before the lower court" is a question of law, the trial court's decision is reviewed de novo. See United States v. Burrows, 872 F.2d 915 (9th Cir. 1989) (denial of a post-conviction motion based on ineffective assistance of counsel without conducting an evidentiary hearing is reviewed de novo for a determination of whether the files and records of the case conclusively show that petitioner is entitled to no relief). Therefore, we hold that, on appeal, the issue whether the trial court erred in denying a Rule 40 petition without a hearing based on no showing of a colorable claim is reviewed de novo; thus, the right/wrong standard of review is applicable.
Dan v. State, 76 Hawai‘i at 427, 879 P.2d at 532.In this case, Conner's Rule 40 petition did not seek relief from a judgment of conviction but, rather, relief from custody based on an unlawful revocation of Conner's parole, pursuant to HRPP Rule 40(a)(2)(ii). Therefore, we must determine, based on an examination of the record before the circuit court, whether the allegations of Conner's petition show that, if taken as true, the facts alleged would change the HPA's decision to revoke Conner's parole.
B.
We observe initially that although Conner alleged in Ground 2 of his Petition that Respondents had violated his "rights under the Equal Protection Clause of the 14th amendment to the United States Constitution," he did not allege any facts to support a claim that he was treated differently from others similarly situated when his parole was revoked. Accordingly, we agree with the circuit court that Conner did not present a colorable claim as to Ground 2 and no hearing was required as to that ground.
C.
Ground 1 of the Petition alleged that Respondents had violated Conner's right to due process under the Fourteenth Amendment to the United States Constitution by improperly revoking his parole.
The United States Supreme Court has recognized that parolees possess a conditional-liberty interest protected under the Fourteenth Amendment:
. . . .
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.
Morrissey v. Brewer, 408 U.S. 471, 480-82, 92 S. Ct. 2593, 2600-01 (1972) (footnotes omitted).The United States Supreme Court explained in Morrissey that
[i]mplicit in the system's concern with parole violations is the notion that the parolee is entitled to retain his [or her] liberty as long as he [or she] substantially abides by the conditions of his [or her] parole. 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 [or her] 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? The first step is relatively simple; the second is more complex. The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. This part of the decision, too, depends on facts, and therefore it is important for the board to know not only that some violation was committed but also to know accurately how many and how serious the violations were. Yet this second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary.
Id. at 479-80, 92 S. Ct. at 2599-600 (emphases added; footnote omitted).
The Morrissey court then outlined the minimum due process required for parole revocation:
. . . .
(a) Arrest of Parolee and Preliminary Hearing. The first stage occurs when the parolee is arrested and detained, usually at the direction of his [or her] parole officer. The second occurs when parole is formally revoked. There is typically a substantial time lag between the arrest and the eventual determination by the parole board whether parole should be revoked. Additionally, it may be that the parolee is arrested at a place distant from the state institution, to which he [or she] may be returned before the final decision is made concerning revocation. Given these factors, due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available. Such an inquiry should be seen as in the nature of a "preliminary hearing" to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.
This independent officer need not be a judicial officer. . . .
The hearing officer shall have the duty of making a summary, or digest, of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee's position. Based on the information before him [or her], the officer should determine whether there is probable cause to hold the parolee for the final decision of the parole board on revocation. Such a determination would be sufficient to warrant the parolee's continued detention and return to the state correctional institution pending the final decision. . . .
We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds. Our task is limited to deciding the minimum requirements of due process. They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him [or her]; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
Id. at 484-89, 92 S. Ct. at 2602-04 (emphases added; citations and footnote omitted).In this case, the record clearly reveals that Conner waived his right to a preliminary hearing to establish probable cause for his arrest for a parole violation. Therefore, no colorable claim, requiring an evidentiary hearing, was presented regarding the preliminary-hearing requirement imposed by Morrissey.
Conner's due-process claim regarding the basis for his parole revocation is more problematic because no record from the proceedings before the HPA is contained in the record on appeal. We are therefore unable to determine exactly what Conner's parole conditions were and what evidence was presented at the parole-revocation hearing. For purposes of our analysis, we assume that the language of Rule #8 is accurately reflected in the Pre-Revocation Hearing Notice and the Revocation Hearing Notice given to Conner and that Conner was required to "participate in [a] sex offender treatment plan until clinically discharged with the concurrence of his Parole Officer."
The HPA's Revocation Hearing Notice to Conner that was attached to Conner's Petition stated, in relevant part:
1.
In violation of Rule #8, Special Condition #6 (E9), the subject
failed to participate in sex
offender treatment plan until clinically
discharged with the concurrence of his
Parole Officer.
On file is Chronological Entry dated October 10, 2005, parole officer received a letter from Dr. Carol Tyler that subject was terminated from treatment.
You are hereby advised of your rights to:
2. Be assisted and represented by counsel prior to and during your hearing;
4. Appear in person and be heard;
Although the circuit court concluded that "the HPA . . . afforded [Conner] all the protections due process requires[,]" we fail to see how the circuit court could have reached this conclusion based on the available record. Conner was charged with violating the conditions of his parole by failing to participate in a sex-offender-treatment plan until clinically discharged. However, Conner's allegations, taken as true, were that he had never missed a sex offender treatment session and that Dr. Tyler unilaterally terminated his treatment plan based on false and unreliable information.
Based on our review of Conner's Petition and the limited information contained in the record on appeal, it appears that Conner raised a colorable claim that Dr. Tyler's "'termination' of [him] from therapy, ha[d] nothing to do with [him] 'failing to participate' in his [sex offender] therapy." The record supports Conner's assertion that he fully participated in sex-offender treatment to the extent possible. This is confirmed in the HPA's summary of Conner's parole history, which unequivocally states that Conner was in good standing with his therapy through his monthly session on October 3, 2005. Accordingly, we conclude that Conner's allegations raise a colorable claim that his due-process rights under Morrissey may have been violated.
The Supreme Court emphasized in Morrissey that parole-revocation hearings must be "structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior." (Emphasis added.) Id. at 484, 92 S. Ct. at 2602. There is nothing in the record to indicate what evidence was produced at the parole-revocation hearing to support the allegations made in the Revocation Hearing Notice to Conner that he "failed to participate in [a] sex offender treatment plan until clinically discharged[.]" The record also does not reveal that the Revocation Hearing Notice to Conner was ever modified to include other grounds for revocation of his parole. The record also does not establish, as required by Morrissey, that the HPA (1) disclosed to Conner all the material evidence against him, or (2) provided a written statement of the evidence upon which the HPA relied and the HPA's reasons for revoking Conner's parole. Id. In the absence of the record from the parole-revocation hearing, the circuit court could not reasonably find that the latter condition was satisfied by the HPA's cursory statement that the "[f]inding of guilt was based on evidence provided by parole officer."
We are cognizant that at the time Conner's parole was revoked, HRS § 353-66(b) (Supp. 2005) provided:
(Emphasis added.) However, neither the Pre-Revocation Hearing Notice nor the Revocation Hearing Notice stated that revocation of Conner's parole was being sought based on a finding by a licensed psychiatrist or licensed psychologist that continuance on parole would not be in the best interests of Conner or the community. Instead, these notices informed Conner that he was charged with violating a condition of his parole that required him to participate in a sex-offender-treatment plan until clinically discharged. Implicit in Morrissey, as well as basic notions of due process, is that Conner's parole could only be revoked for the alleged violation with which he was charged and of which he received notice.
Conner's parole could properly be revoked if he engaged in conduct that justified the termination of his treatment plan. The existing record, however, is insufficient to refute Conner's allegations that there was no valid reason to terminate his treatment plan.
CONCLUSION
In summary, Conner has asserted various facts regarding the circumstances of his parole revocation which, if true, raise a colorable claim that the HPA may have failed to adhere to the due-process requirements outlined in Morrissey as to Ground 1. Accordingly, a hearing was warranted as to Ground 1 and the circuit court erred in failing to conduct a hearing on that claim.
For the foregoing reasons, we vacate the circuit court's September 28, 2006 Order as it relates to Ground 1 of Conner's Petition and remand this case to the circuit court for a hearing as to that ground.
DATED: Honolulu, Hawai‘i, October 13, 2008.
1. The Honorable
Virginia Lea Crandall presided.