Opinion
No. 70-634
Decided March 10, 1971.
Habeas corpus — Does not lie, when — Parolee sentenced on conviction of new felony — Sentences run consecutively, when.
IN HABEAS CORPUS.
This action in habeas corpus was instituted in this court.
In 1963, petitioner was sentenced to a term of one to seven years for grand larceny. He was paroled in 1967. In 1968, while on parole, he was sentenced to prison for a term of one to two years for malicious entry, the entry of judgment being silent as to whether such sentence should run consecutively to or concurrently with petitioner's 1963 sentence. In 1969, the parole board continued petitioner's case until 1972, the time when the maximum of both sentences he is serving will expire.
In this action, petitioner claims that his 1963 and 1968 sentences should run concurrently because the trial court which sentenced him in 1968 for malicious entry did not specify that his sentence should run consecutively to the 1963 sentence imposed on him for grand larceny. Therefore, he argues, his maximum sentence has now expired. Petitioner bases his contentions on the last paragraph of R.C. 2967.25 which, he claims, operates to make his 1963 and 1968 sentences run concurrently.
Mr. William Sawyer, in propria persona. Mr. Paul W. Brown, attorney general, and Mr. James L. Hoover, for respondents.
The provision of R.C. 2967.25 relied upon by petitioner does not apply to a parolee or parole violator who is sentenced upon conviction of a new felony. R. C. 2967.25(C). Thus, petitioner's sentences run consecutively and have not yet expired. Petitioner is not entitled to release from custody.
Petitioner remanded to custody.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.