Opinion
No. 39956
Decided May 25, 1966.
Habeas corpus — Release to another state for prosecution — Not waiver by releasing state of jurisdiction over prisoner — State not required to pursue and return violator — Sentence period not reduced by time at large as parole violator — Manner of procuring accused's presence — Power to imprison for crime previously committed not thereby impaired.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In March 1951, petitioner, Robert Louis Whitaker, pleaded guilty to the crime of stealing a motor vehicle. He was sentenced to the Ohio State Reformatory, but it developed that he had served prior prison sentences, and, therefore, he was transferred to the Ohio Penitentiary. Since that time he has been placed on parole four times, and each time he has been declared a parole violator and was returned to the Ohio Penitentiary. Petitioner was returned to the penitentiary in 1955 after violating his first parole. He was paroled again in April 1956, and on June 1, 1956, he was declared a parole violator. On December 18, 1956, Ohio was informed by Missouri that petitioner was in custody but refused to waive extradition. While still in custody in Missouri, he was turned over to the federal authorities on a Dyer Act violation and was sentenced to the Federal Penitentiary at Terre Haute, Indiana. He was released from the Federal Penitentiary in March 1958 and after extradition proceedings was returned to Ohio. He was reparoled on June 17, 1960, was declared a parole violator on August 12, 1960, and was returned to the Ohio Penitentiary on September 1, 1960. Petitioner was again paroled on November 2, 1961, and declared a parole violator on October 25, 1962. On October 5, 1962, petitioner had pleaded guilty to a forgery count in Kentucky, and Ohio placed a detainer on him. Ohio was notified that petitioner would be released on May 4, 1964, but did not reclaim him. In July 1964, Ohio issued a warrant for petitioner, on which he was arrested in July 1965 in Bell County, Kentucky. He was not extradited but was informed that he was to be returned under the interstate compact system. He was returned to the Ohio Penitentiary in August 1965.
Mr. Robert Louis Whitaker, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
It is petitioner's primary contention that Ohio has lost jurisdiction to further incarcerate him. He bases this claim on the fact that, when he was under arrest as a parole violator in 1956 in Missouri and Ohio released him to the federal authorities for prosecution, Ohio thereby relinquished its jurisdiction over him and waived the right to further imprison him. He urges further that such jurisdiction was lost the second time when Ohio failed to promptly reclaim him on his release from the Kentucky State Reformatory in 1964. He alleges that he was available for return at that time, and that Ohio by failing to reclaim him waived its right to do so. Petitioner contends also that he was illegally returned from Kentucky because he was arrested on an invalid warrant and was not properly extradicted therefrom.
In relation to petitioner's first contention, the release by one sovereign in order that an accused may be tried by another does not constitute a waiver by the first sovereign of the right to require that the accused fulfill his obligation to it under a previously imposed sentence. Guerrieri v. Maxwell, Warden, 174 Ohio St. 40; Murphy v. Maxwell, Warden, 176 Ohio St. 297; Heston v. Green, Supt., 174 Ohio St. 291; Tomkalski v. Maxwell, Warden, 175 Ohio St. 377.
In relation to petitioner's second contention, it has been held that where a parolee violates his parole there is no affirmative duty on the state to pursue him and return him to custody, and that its failure to do so does not create any waiver of its right to exact the penalty previously imposed when it once again takes him into custody. Cline v. Haskins, Supt., 175 Ohio St. 480; Carter v. Maxwell, Warden, 177 Ohio St. 35.
As to petitioner's final contention that he was arrested under an expired warrant and returned illegally to Ohio, this argument is without merit. The manner in which an accused is brought into a state does not affect the power of the state to imprison him under a previously imposed sentence. Tomkalski v. Maxwell, Warden, supra.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.