Summary
denying mandamus to force chief of police to file affidavit and warrant against petitioner or, in the alternative, to withdraw detainer
Summary of this case from United States v. FordOpinion
No. 5749
Decided March 25, 1958.
Criminal law — Pardon and parole — Detainer filed against prisoner — Delay in filing affidavit — Mandamus to show cause — Remedy not available.
A prisoner in the Ohio Penitentiary against whom a detainer has been filed with the Warden by a chief of police may not by mandamus require that the chief of police be ordered to show cause for his delaying the filing of an affidavit against the prisoner and having a warrant issued thereon, or that the detainer be withdrawn.
IN MANDAMUS: Court of Appeals for Franklin County.
Mr. Alex Faehr, in propria persona. Mr. Russell Leach, city attorney, and Mr. Bernard T. Chupka, city prosecutor, for respondent.
This is an action in mandamus, originating in this court, by the relator acting as his own counsel, in which he seeks to require that the respondent, the chief of police of Columbus, Ohio, be ordered to show cause for his delaying the filing of an affidavit against relator and having a warrant issued thereon, or that a detainer filed by the respondent on May 23, 1956, with the Warden of the Ohio Penitentiary be withdrawn.
We find no allegation in relator's petition which would give him any right to mandamus under the Fourteenth Amendment to the United States Constitution.
The reference which relator makes to the speedy public trial guaranteed by Section 10, Article I of the Ohio Constitution, does not apply to this type of case but only to one in which a charge has been filed. After a charge has been filed, certain statutory procedure is required, and this constitutional provision may be invoked in such a case. There seems to be no provision in the Ohio law with reference to the detainer which relator refers to in his petition, unless the last sentence of Section 2965.09, Revised Code; would contemplate such detainer. This provision is as follows:
"All state and local officials shall furnish information to the commission, when so requested by the commission in the performance of its duties."
In the first paragraph of Section 2965.09, Revised Code, beginning at the second sentence, we find the following provision:
"When a prisoner becomes eligible for parole, the head of the institution in which such prisoner is confined shall notify the commission in the manner prescribed by the commission."
While it is possible, in certain cases, for a prisoner in the Ohio Penitentiary to be tried by reason of Section 2941.40, Revised Code, there appears to be no statute which makes provision for such trial until a charge or indictment has been made or returned against a person.
Although it is not apparent from the petition, it would seem that the relator's concern about the detainer is what effect it may have if and when he becomes eligible for parole. When that time arrives, it will be the duty of the warden to certify him to the parole commission, and it will be the duty of the commission to exercise its sound discretion with reference to the right of the relator to be paroled. We may assume that such parole commission will make its investigation and exercise sound discretion in the matter; and that, if it determines that a detainer has been lodged for an unreasonable time against the prisoner without a charge being filed, it may inquire into the reasons and subpoena witnesses to learn what reasons such official had for filing the detainer, and, if no grounds are shown by such official and no charge lodged against the prisoner, the commission may disregard the matter and proceed to pass upon the parole as if no detainer were filed.
We may assume, in the first place, in the absence of any showing to the contrary, that the chief of police had good cause for lodging the detainer with the warden.
In view of Section 2965.09, Revised Code, supra, wherein officials are required to furnish information to the commission, we fail to see where this court would have any authority to require the chief of police to withdraw his detainer. Furthermore, this court would have no authority to hold the same null and void.
Since we feel that the relator's rights can be adequately protected when he becomes eligible for parole, and that he will have an adequate remedy if officials connected therewith abuse their discretion or the warden refuses to certify his name to the commission when he becomes eligible for parole, we feel compelled to deny his writ of mandamus upon either ground set forth in his petition.
The demurrer to the petition is sustained, and the writ is denied.
Writ denied.
BRYANT and MILLER, JJ., concur.