Opinion
No. 4283
Decided June 1, 1949.
Criminal law — Habeas corpus — Petitioner released on parole — Not discharged from custody of warden of penitentiary — Warrant by sending state to retake parolee — Out-of-state parolee supervision — Section 108-1 et seq., General Code — Sending state to determine whether prisoner a parole violator.
1. Where a petitioner, by a habeas corpus proceeding, seeks release from the custody of the warden of the Ohio state penitentiary and the sheriff of Franklin county, on the grounds that petitioner was released on parole by the state of Ohio effective upon the making of satisfactory arrangements for his return to the state of New York on a warrant for his arrest as a parole violator there, issued under Section 108-1, General Code, but that he could not be returned to the state of New York under such warrant, it must clearly appear from the record that the release would be effective upon failure of the contingency before the relief prayed for will be granted.
2. Where a warrant has been issued by the state of New York, pursuant to Section 108-1, General Code, for petitioner's arrest as a parole violator, the warrant as issued is sufficient authority for the retaking of petitioner by the state of New York, and the question of whether he is a parole violator is one which must be decided by the state of New York and is not subject to review in Ohio.
IN HABEAS CORPUS: Court of Appeals for Franklin county.
Miss Cecile Shapiro, for petitioner.
Mr. Herbert S. Duffy, attorney general, and Mr. Walter R. Hill, for respondent.
This action comes before the court upon the petition of John G. Nagy for a writ of habeas corpus. The record discloses that the petitioner is in the custody of Ralph Alvis, warden of the Ohio state penitentiary, having been committed under authority of a sentence by the Common Pleas Court of Cuyahoga County, to serve a sentence of one to twenty years for automobile stealing. Prior to this conviction the petitioner had been arrested and convicted in the state of New York, having been released on parole. On April 18, 1949, he was paroled from the Ohio state penitentiary, the same to become effective when called for by the authorities of the state of New York which had issued and served upon the defendant a warrant for Nagy's arrest as a parole violator from that state. The warrant was issued under the provisions of the "Compact for Mutual Assistance" between the several states and which is defined by Section 108-1, General Code.
The petitioner is contending that he has served his full sentence under the laws of the state of New York and therefore cannot be a parole violator, and that the facts set forth in the warrant are not true. The respondent is contending that the warrant as issued for the retaking of the petitioner is sufficient authority for the state of New York to retake him as a parole violator. In other words, the question as to whether he is a parole violator is one which must be decided by the state of New York and is not subject to review in Ohio. The respondent's views seem to be well supported by Section 108-1, General Code, which provides in part:
"The governor of this state is hereby authorized and directed to execute a compact on behalf of the state of Ohio with any of the United States legally joining therein in the form substantially as follows:
"A compact entered into by and among the contracting states, signatories hereto, with the consent of the Congress of the United States of America, granted by an act entitled `An Act Granting the Consent of Congress to Any Two or More States to Enter into Agreements or Compacts for Co-operative Effort and Mutual Assistance in the Prevention of Crime and for Other Purposes,' passed June 6, 1934. (48 Stat., 909.)
"The contracting states solemnly agree:
"* * *
"(3) That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state * * *." (Emphasis ours.)
It will be noted the statute provides that the decision of the sending state shall be conclusive upon and not reviewable within the receiving state. This clearly deprives the courts of this state of jurisdiction to inquire into the matters set forth in the warrant. The petitioner can be heard on this subject only in the courts of New York. This is a question of first impression in this state and petitioner cites no authorities to support his views. The record discloses that all the requirements of Section 108-1, General Code, have been met by the state of New York, and it is therefore entitled to the custody of the petitioner.
Petitioner remanded to custody.
WISEMAN, J., concurs.
HORNBECK, J. I concur in the judgment with my associates, but upon a somewhat different theory.
I am in agreement with the claim of the petitioner that if he is not on parole from New York state, then the Compact for Mutual Assistance, Section 108-1, General Code, has no application, and if the petitioner has served the full period of his sentence, then he is not amenable to any condition of parole. The act assures to the officer from the sending state that no question affecting violation of the terms of the parole shall be adjudicated in any other state than the state from which the parolee has been committed. No such claim is made here, the basic contention being that the petitioner has fully served his sentence and therefore may not be considered as "any person on probation or parole."
But the action seeks an order of this court against the warden of the Ohio state penitentiary and the sheriff of Franklin county, removing the right of custody of the petitioner from both of them. It does not clearly appear that, under the conditions of the release by the state of Ohio to the state of New York, if satisfactory arrangement be not made for the prisoner's return to New York, the release of the petitioner would be effective. In this situation the relief prayed cannot be granted even though we would hold that petitioner may not be returned to New York on the warrant for his arrest.