Opinion
No. 37879
Decided March 13, 1963.
Habeas corpus — Petitioner indicted, pleaded guilty, sentenced and paroled — Parole violator — State's release to serve sentence in another state — Not waiver of right to execute prior sentence.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. On January 11, 1956, the Grand Jury of Erie County returned an indictment charging petitioner, Michael Heston, on two counts of forgery. Petitioner pleaded guilty to the first count and was sentenced to the Ohio State Reformatory. On April 14, 1958, petitioner was paroled. At that time, the state of Indiana had a detainer on the petitioner, and he was immediately removed to that state where he was incarcerated. In 1959, petitioner was paroled in Indiana. He was placed on parole under the provisions of the interstate compact and was subject to the supervision of Indiana authorities. In 1959, he left Indiana and went to El Paso, Texas, thus violating the terms of his parole. He was thereupon declared a parole violator by the Ohio authorities. Petitioner was arrested by the Federal Bureau of Investigation in El Paso for Indiana. Ohio then put a detainer on him and petitioner waived extradition to Ohio. The Ohio authorities, at the request of Indiana, declined jurisdiction and the petitioner was returned to Indiana to complete his sentence. In 1961, he completed his Indiana sentence and was returned to Ohio as a parole violator. He is presently confined at the Marion Correctional Institution.
Mr. Michael Heston, in propria persona. Mr. Mark McElroy, attorney general, and Mr. John J. Connors, Jr., for respondent.
Petitioner's primary contention is that when he waived extradition to Ohio while in El Paso, Texas, Ohio obtained complete jurisdiction and custody over him and Ohio's subsequent declining in favor of Indiana constituted an abandonment of Ohio's claim to him. In other words, Ohio waived its right to exact a further sentence from him.
Petitioner cites and relies on a line of cases which hold that, where a convict is in custody under a conviction of a crime, the surrender of him to another sovereign for prosecution or imprisonment operates to preclude further punishment for the original conviction. See People, ex rel. Barrett, Atty. Genl., v. Bartley, Judge, 383 Ill. 437, and annotation, 147 A.L.R., 941. This, however, is the minority view. An examination of those cases shows no sound basis at law or under the Constitution to conclude that a release of a convict by one sovereign for prosecution for another crime or to serve a sentence for which crime the prisoner has already been convicted by another sovereign should constitute a waiver by the releasing sovereign of its rights to exact the full penalty.
Inasmuch as it is impossible for a person to be in two places at the same time, where one owes penalties to two separate sovereigns one sovereign must relinquish its claim and allow the other to exact its penalty first. Such relinquishment does not constitute a waiver of punishment but rather a mere delay in its execution. The order of punishment is a matter to be decided between the sovereigns and is a matter over which the convict has no control.
This court had a similar question before it in Guerrieri v. Maxwell, Warden, 174 Ohio St. 40. The court in that case said:
"Therefore, where one has placed himself in the position of being wanted at the same time by two different sovereigns for the violation of penal statutes of both, it is a matter for the sovereigns to determine which shall first exact punishment from the offender, and not the offender. Under such circumstances it is the interested sovereigns who make the determination and the offender cannot complain of the order of his trials or punishment for such offenses. * * *
"* * * The release by the state of one in its custody or under sentence by it to the federal government to serve a subsequently imposed federal sentence does not constitute a waiver by the state to carry into execution its previously imposed sentence after the termination of the federal sentence."
The same underlying principles which applied in the Guerrieri case are applicable here. The petitioner owed a debt to two sovereigns, each of which had an absolute right to require full satisfaction, and such penalty must be paid.
Petitioner has shown no lack of jurisdiction over him nor has he shown any deprivation of a constitutional right.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.