Summary
In Smouse and Bush, supra, the parole violators were unavailable because they were serving sentences for intervening crimes.
Summary of this case from State, ex Rel. Moon, v. Parole AuthorityOpinion
No. 68-503
Decided November 20, 1968.
Criminal law — Sentence — Time lost not counted, when — Section 2967.15, Revised Code — Declared parole violation — Time served for other offenses committed while on parole — Mandamus.
IN MANDAMUS.
In this original action in mandamus relator seeks to compel his release from confinement at the Marion Correctional Institution. It is his contention that his sentence has expired and therefore he is being unlawfully detained. A demurrer has been filed to the petition on the ground that it fails to state facts which constitute a cause of action upon which relief may be granted.
According to the petition relator was convicted of the offense of grand larceny on January 24, 1961. He was sentenced to serve one to seven years in the Ohio Penitentiary. He was released on parole on March 4, 1964, but was declared a parole violator on January 15, 1965. On October 6, 1965, he was arrested on a charge of malicious entry and convicted of that offense in January of 1966. He was then sentenced to serve a term of one to two years in the Ohio Penitentiary. Relator has since been continuously imprisoned within the penal institutions of Ohio.
Mr. Carl Earl Smouse, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Relator alleges that he is entitled to have the unexpired portion of his original sentence for grand larceny run concurrently with his subsequent sentence for malicious entry. Relator argues that he became available for return to the penitentiary as of the date of his arrest for malicious entry, and that the unexpired portion of his sentence for grand larceny began to run at that moment. Such being the case, he would by now have served his maximum sentence and be entitled to his freedom.
Relator is basing his claim for relief upon certain language contained in Section 2967.15, Revised Code, viz:
"A convict who has been conditionally pardoned or a prisoner who has been paroled, who in the judgment of the adult parole authority, has violated the conditions of his pardon or parole shall be declared a violator. In such case, the time from the date of the declared violation of his pardon or parole to the date he becomes available for return to the institution shall not be counted as a part of time or sentence served." (Emphasis added.)
The identical language upon which relator predicates his claim to relief has already been considered by this court in the case of Bush v. Maxwell, 175 Ohio St. 207. At the time the Bush case was decided the provision upon which relator relies was part of Section 2965.21, Revised Code — the predecessor statute to Section 2967.15, Revised Code. We said, at pages 209 and 210 in the opinion:
Former Section 2965.21, Revised Code, was repealed in the same bill in which Section 2967.15 was enacted. See 130 Ohio Laws, Pt. 2, 148, 154.
"* * * 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 at large on parole. See Anderson, Warden, v. Corall, 263 U.S. 193; and 24B Corpus Juris Secundum, 673, Criminal Law, Section 1996(5)."
Accordingly, we find that relator's petition fails to state facts which constitute a cause of action upon which relief may be granted. Therefore, the demurrer of respondent is sustained and the writ is denied.
Writ denied.
TAFT, C.J. ZIMMERMAN, MATTHIAS, O'NEILL, DOYLE, SCHNEIDER and BROWN, JJ., concur.
DOYLE, J., of the Ninth Appellate District, sitting for HERBERT, J.