Opinion
No. 38162
Decided September 25, 1963.
Habeas corpus — Serving of sentence — Violation of parole interrupts running of sentence — Time served for other offenses during parole violation not credited.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. Petitioner, Marion Bush, was indicted in 1947 for the crime of assault with intent to rape and having been found guilty by a jury was sentenced on February 4, 1948, to the Ohio Penitentiary for a period of one to 15 years. He was admitted to the penitentiary on February 10, 1948. In 1951, petitioner was placed on parole; on August 18, 1951, he was declared a parole violator; and he was returned to the penitentiary on August 22, 1951. In 1955, petitioner was again paroled, and on March 7, 1955, he was declared a parole violator. On July 13, 1955, petitioner was arrested by the Oklahoma Highway Patrol for driving while intoxicated, hit and run driving and driving without a license. For these offenses he received two 30-day concurrent sentences. On July 20, 1955, Ohio placed a detainer on petitioner and he was released to the Ohio authorities on July 22, 1955, and was returned to the Ohio Penitentiary on July 23, 1955. In 1958, petitioner was once again placed on parole and on May 29, 1958, was again declared a parole violator. On October 26, 1960, he was arrested on a check charge by the Dodge City Police and was released to Ohio on November 7, 1960. He is presently incarcerated in the Ohio Penitentiary, the time during which he was at large as a declared parole violator having extended his time of release until 1965.
Mr. Marion Bush, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
It is petitioner's contention that his sentence has expired, since 15 years have passed from the time of his original sentence, and thus he is entitled to release. This would be true if petitioner had served his sentence without interruption either in the penitentiary or while on parole.
The fact that petitioner during a part of this time was on parole did not, of course, affect the running of the sentence inasmuch as one on parole is considered to be in technical custody and is, therefore, deemed to be serving his sentence during this period. However, when a parolee violates his parole and becomes a declared parole violator he is no longer in constructive custody, his status then changes and he is considered to be essentially an escaped prisoner, which status interrupts the running of the sentence. King v. Maxwell, Warden, 173 Ohio St. 536; and 67 Corpus Juris Secundum, 611, Pardons, Section 22.
This precise situation is covered by statute in Ohio. Section 2965.21, Revised Code, as in effect since 1959, reads in part as follows:
"* * * In such case, the time from the date of the declared violation of his pardon or parole to the date that he becomes available for return to the institution shall not be counted as a part of time or sentence served."
Thus, under the Ohio law, although a parolee's sentence continues to run while he is legally on parole, once he is declared a parole violator his sentence ceases to run and the time during which he is at large as a parole violator is not counted as a part of his sentence served. His sentence commences to run again only in conformity with the terms of the statute.
During the period of petitioner's sentence, Section 2965.21, Revised Code, so far as the time at which a declared parole violator's sentence commences to run, has undergone several changes.
From the time of petitioner's sentence until 1959 the law provided that the time between the declaration of parole violation and the arrest or return should not be counted as time served. The present statute enacted in 1959 provides that the time between the declaration of violation and the time a parolee is available for return shall not be counted.
Petitioner urges that the time he was held as a parole violator has not been counted as time served. The evidence shows that this is not a fact. Although petitioner, during the time he was on parole, was arrested and served time in various other jurisdictions, these arrests and the time served were not for parole violation but for other offenses.
Petitioner contends, however, that the time he served in various jails for other offenses during the time he was at large must be counted as time served under his Ohio sentence since he was arrested for these offenses and available for return.
The argument of petitioner in this respect is without foundation. Although Section 2965.21, Revised Code, provides in effect that a parole violator's sentence which had been interrupted by a declared parole violation commences to run again upon his arrest or return to the institution, the arrest referred to in this section refers only to his arrest as a parole violator and not an arrest for another and distinct offense. In other words, the arrest for another offense during the time one is at large as a declared parole violator does not, under the statute, constitute an arrest which will have the effect of recommencing the interrupted sentence from which one is on parole.
A declared parole violator has the same status as an escaped prisoner, and neither his arrest nor incarceration for other offenses committed while he is on parole acts to recommence the running of his sentence which was interrupted by the declaration of violation of parole, nor is he entitled to credit for time served on his parole sentence for time served on sentences for other offenses committed while he is large on parole. See Anderson, Warden, v. Corall, 263 U.S. 193; and 24B Corpus Juris Secundum, 673, Criminal Law, Section 1996(5).
Petitioner's maximum sentence has not expired, and, therefore, he is legally in custody.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.