APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 73-369).
Van Dusen, Hunter and Weis, Circuit Judges.
This is an appeal from a denial of a prisoner's pro se petition under 28 U.S.C. § 2255 to vacate two consecutive five-year sentences which were imposed after revocation of probation.
On February 5, 1969, petitioner was tried before a jury and found guilty of violating two federal narcotics statutes, 26 U.S.C. §§ 4704(a) and 4705 (a).*fn1 On April 1, 1969, the district court judge suspended imposition of sentence and imposed a two-year probationary term for each offense, the two terms to run concurrently. Five days prior to the expiration of the terms of probation, on March 25, 1971, the district court judge granted an ex parte extension of the period of probation for one year. In so acting, he was following the advice of the Probation Office, which had recommended such an extension on March 22.
The basis for the Probation Office's recommendation and for the action taken by the trial judge was the fact that since being placed on probation, the petitioner had been arrested on seven occasions by the Philadelphia police for narcotics violations. At the time of the Probation Office's recommendation, the petitioner had been adjudged not guilty or the charges had otherwise been dismissed with respect to four of the seven arrests. Charges arising out of the remaining three arrests were still pending and were not scheduled for further court action until April 19, 1971, which was after the date on which the original probationary terms were scheduled to expire. In December of 1971, three months before the extension of probation would have expired, the petitioner was arrested for violation of the terms of his probation. Following a hearing on January 7, 1972, at which the petitioner was represented by counsel, the district court revoked probation and sentenced him to two consecutive five-year sentences.
The petitioner challenges his sentencing on a number of grounds, but we believe that only one of them deserves lengthy discussion.*fn2 At the heart of the petitioner's case is the question of whether the one-year ex parte extension of probation was valid. If it was not, he argues, then the subsequent revocation and sentencing were likewise invalid. The petitioner challenges the extension on the ground that Fed. R. Crim. P. 43*fn3 required his presence at the time the trial judge granted the extension. For this argument to have merit, however, the extension of probation would have to be considered an "imposition of sentence," and we cannot so hold. Courts in other contexts have clearly established that placing a defendant on probation does not constitute an "imposition of sentence," but rather merely delays sentencing. See, e.g., United States v. Fultz, 482 F.2d 1 (8th Cir. 1973); United States v. Fried, 436 F.2d 784 (6th Cir.), cert. denied, 403 U.S. 934, 29 L. Ed. 2d 714, 91 S. Ct. 2264 (1971); Zaroogian v. United States, 367 F.2d 959 (1st Cir. 1966); Bartlett v. United States, 166 F.2d 928 (10th Cir. 1948). Furthermore, we agree with the Government that if the initial imposition of probation does not constitute the imposition of sentence, then neither can the extension of probation.*fn4
A much more troublesome question is whether the due process clause requires that a probationer be given notice and a right to a hearing before any order granting an extension of probation is entered. This is a novel question, and the only federal case we have found which is directly on point, United States v. Freeman, 160 F. Supp. 532 (D. D.C. 1957), aff'd on other grounds, 103 U.S. App. D.C. 15, 254 F.2d 352 (1958), refused to vacate a sentence after an ex parte extension and subsequent revocation. However, the court in Freeman expressed disapproval of the practice of granting ex parte extensions and stated that in future cases it would require the appearance of probationers with counsel. Our research has disclosed only one decision, a ruling by the Virginia Supreme Court,*fn5 which has held that revocations following ex parte extensions are invalid.
Before reaching the merits of this issue, however, we must first consider the threshold question of whether the case was properly brought under 28 U.S.C. § 2255. The court of appeals in Freeman affirmed the district court's ruling, but rather than decide the merits, it held that a challenge of this nature was not cognizable under § 2255. It reasoned that since the prisoner was challenging only the execution of his sentence and not its imposition, relief was available only through habeas corpus in the district of confinement or on direct appeal. We decline to follow this reasoning, since we believe that the sentencing of Skipworth after his probation was revoked was in every real sense the imposition of a sentence rather than its execution. Unlike the prisoner in Freeman, who was initially sentenced to a period of imprisonment but who was placed on probation when execution of that sentence was suspended, the petitioner here was never sentenced to imprisonment until after revocation. We also note that the District of Columbia Circuit has since sharply limited the reach of its earlier decision in Freeman. See United States v. Webster, 161 U.S. App. D.C. 1, 492 F.2d 1048, 1051 n.1 (1974).
Turning to the merits, we observe that the law has changed considerably since the district court decision in Freeman. The court there relied primarily on the Supreme Court's decision in Escoe v. Zerbst, 295 U.S. 490, 492-93, 79 L. Ed. 1566, 55 S. Ct. 818 (1935), which had stated in dicta that there was no constitutional right to a hearing before revocation of probation on the ground that probation is an "act of grace" or a "privilege", rather than a "right." However, in Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973), the Supreme Court repudiated Escoe and held that due process does require that a probationer be given notice and the right to a hearing prior to revocation. In so holding, the Court followed its earlier decision in Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), which had established a constitutional right to a hearing before revocation of parole. Noting that the right/privilege distinction no longer had any validity,*fn6 the Court phrased the test as follows: "Whether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.'" Morrissey, supra, at 481. The Court also stressed the importance of a factual determination in a revocation proceeding as to whether the individual had substantially complied with the provisions of his parole (or probation).
After careful consideration of the principles set forth in Morrissey and Gagnon and their applicability to this case, we do not believe that due process required notice and a hearing prior to the extension of the petitioner's probation. While we acknowledge that probation entails significant restrictions on an individual, an extension of probation is clearly not as "grievous" a "loss" as revocation, and here it entailed no greater restrictions than those which existed previously. In fact, the primary "loss" suffered by an individual whose probation has been extended lies not in the continuing restrictions themselves, but in the possibility of future revocation. While such a loss is indeed serious, it is merely potential at the time of extension, and the due process clause clearly provides the protection of a hearing in the event that revocation proceedings should subsequently occur. We add that the petitioner in fact received a revocation hearing at which he was represented by counsel.
We also note that the kind of factual inquiry in an extension proceeding is quite different from that in a revocation proceeding. In revocation proceedings, the trial judge must reasonably satisfy himself that the probationer has broken some law while on probation or has otherwise violated a condition of his probation. While the judge has considerable discretion as to whether to order revocation, he must at a minimum make an initial factual finding of a probation violation. A revocation hearing, therefore, provides the probationer with the crucial opportunity to contest an allegation of violation.
In granting an extension, however, the trial judge is given greater latitude, and he need not find that any probation violation has occurred. For example, in United States v. Squillante, 144 F. Supp. 494, 497 (S.D. N.Y. 1956), the court refused to terminate the probation which it had previously extended, despite finding that the probationer had complied with the express condition of his probation, because it believed that "the best interest of society warrants the continuation of supervision over the probationer." See also United States v. Rosner, 161 F. Supp. 234 (S.D. N.Y. 1958); United ...