A-7133999.
Decided by Board April 20, and July 22, 1955. Approved by Attorney General March 21, 1956.
Commutation of sentence — Represents substitution for original sentence — Where commuted sentence is less than one year, deportability for crime within five years under section 241 (a) (4) of 1952 act cannot be established.
(1) Commutation of sentence to ten calendar months granted by the Nevada Board of Pardons and Parole Commissioners in November 1953 represents a substitution for the original sentence of not less than one year nor more than ten years, the original sentence thereby losing its legal efficacy.
(2) Deportability under section 241 (a) (4) of the Immigration and Nationality Act for a crime committed within five years after entry is not established where the sentence for such crime has been commuted by executive action to a period of less than one year.
CHARGE:
Warrant: Act of 1952 — Crime within five years — Obtaining property by false pretense.
BEFORE THE BOARD
(April 20, 1955)
Discussion: This case is before us on appeal from the decision of a special inquiry officer on October 11, 1954, directing the respondent's deportation.
The respondent is a 35-year-old male, native and citizen of Norway, who was lawfully admitted for permanent residence on February 18, 1949. He entered Mexico on several occasions in connection with his employment for periods of less than one hour. His last entry occurred in May 1951, at which time he was admitted as a returning resident.
The respondent pleaded guilty to the offense of obtaining property by false pretense committed about February 9, 1953, and on April 22, 1953, he was sentenced to imprisonment for not less than one year nor more than ten years. Subsequently, the sentence was commuted and he was released on February 22, 1954. Exhibit 8 indicates that it was not the practice to prepare a formal document concerning the discharge of a prisoner under the circumstances existing in the respondent's case and that exhibit 7 was furnished merely as a matter of convenience in complying with counsel's request for a copy of the discharge. Hence, we believe it is apparent that exhibit 7 and an identical copy do not purport to be copies of any document issued at the time of the respondent's release. We have commented on this matter because exhibits 7 and 9 are dated February 22, 1954, which would indicate that it was on that date that commutation of the sentence was ordered. However, that is not the case because exhibit 6, which is a letter written by the Secretary of the Board of Pardons and Paroles on March 12, 1954, contains the specific statement that during the last November meeting (November 1953) of the Board, the respondent was "granted a commutation to time served as of February 23, 1954." The only additional information available as to the nature of the commutation is the statement in exhibits 7 and 9 reading "subject was commuted to 10 calendar months, as of February 22, 1954, and has no further obligation to the State of Nevada."
We have carefully considered the arguments of counsel in his brief on appeal and the cases cited in support thereof. He contends that the original sentence has ceased to exist; that the commuted sentence is for less than one year; and that the respondent is, therefore, not deportable. The special inquiry officer stated that it had previously been held that, when a sentence to imprisonment has been imposed and commitment follows, the sentence is not affected by a later parole or commutation. No specific authority for this proposition was set forth. However, we are aware that such a view has been expressed by the Service and that the cases relied on are United States ex rel. Sirtie v. Commissioner of Immigration, 6 F. (2d) 233 (E.D.N.Y., 1925); United States ex rel. Kiobge v. Day, 42 F. (2d) 716 (S.D.N.Y., 1929); and United States ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2, 1931).
The first two cases mentioned above held that where indeterminate sentences were imposed, the aliens must be considered to have been sentenced to the maximum terms (3 years) even though they were paroled before they had served one year. Hence, these cases are authority for the proposition that the sentence is not affected by a later parole, and that has been a long settled judicial and administrative view. In United States ex rel. Robinson v. Day, supra, at page 1023 the court indicated that, once a judge has committed an offender, the deportation statute may not then be defeated by a parole or commutation. However, that statement was clearly obiter dictum because the court held that the alien there involved was not deportable since, at the time sentence was imposed, execution thereof was conditionally suspended and the alien was never imprisoned. Parenthetically, we may state that, under section 241 (a) (4) of the Immigration and Nationality Act, we have held an alien deportable even though his sentence was wholly suspended.
With respect to the effect of a commutation of sentence, we do not find that this question has been specifically adjudicated with the exception of one unreported case which will, therefore, not be relied on as a precedent. A preliminary observation to be made is that the authority to grant commutations is not a judicial function. It is to be distinguished, therefore, from those proceedings in which courts suspend sentences or grant probation. The power to commute a sentence is a part of the pardoning power which is vested in the President by the Constitution of the United States and which, in the States, is vested in the Governor or in a Board of which the Governor is a member. The general power of pardon necessarily contains in it the lesser power of remission or commutation. While Article II, section 2 of the Constitution of the United States provides only that the President "shall have power to grant reprieves and pardon * * *" and does not use the term "commutation," it is now well settled that, under this pardoning power, the President may commute a death sentence to life imprisonment.
20 R.C.L. 530.
Ex parte Wells, 59 U.S. 307; Biddle v. Perovich, 274 U.S. 480 (1927).
The respondent's conviction occurred in Nevada and the statutory provisions of that State must be considered. The Nevada Act of 1933 provides as follows: "The state board of pardons and parole commissioners shall consist of the governor, justices of the supreme court, and attorney general." Article V, section 14 of the Nevada constitution contains the following specific provision:
Section 11569 of Nevada Compiled Laws (Supplement 1931 to 1941).
The governor, justices of the supreme court, and attorney general, or a major part of them, of whom the governor shall be one, may, upon such conditions and with such limitations and restrictions as they may think proper, remit fines and forfeitures, commute punishments, and grant pardons, after convictions, in all cases, except treason and impeachments, subject to such regulations as may be provided by law relative to the manner of applying for pardons.
In 1950, section 14 of Article V was amended by the addition of another sentence to authorize the enactment of legislation which would permit courts to suspend sentences, grant probations, etc. However, no change was made in the provision quoted above which has been in effect since the adoption of the constitution in 1864.
It is well settled that a commutation is the substitution of a less for a greater punishment or, as sometimes stated, it is the change from one punishment known to the law to another and different punishment also known to the law. As early as 5 Op. Atty. Gen. 370 (1851), it was held that where the President of the United States had commuted a death sentence to life imprisonment, the prisoner was in precisely the same legal condition as if he had been sentenced by the court to imprisonment for life. Likewise, in Chapman v. Scott, 10 F. (2d) 156, 161 (D.C. Conn., 1925), affirmed 10 F. (2d) 690 (C.C.A. 2), cert. denied 270 U.S. 657, the court said that Chapman, having already served part of his 25-year sentence, the President's commutation substituted the time served for the term which the court had imposed originally.
20 R.C.L. 530; Vol. 8, Words and Phrases, "commutation"; Ex parte Janes, 1 Nev. 319, 321 (1865); People ex rel. Smith v. Jankins, 325 Ill. 372 (1927), 156 N.E. 290, 292.
Similarly, where the Governor of the State had granted a commuation of sentence, it was held that the sentence thus substituted will be treated precisely as if the substituted sentence had been imposed by the court in the first instance. The decision in State ex rel. Murphy v. Wolfer, 127 Minn. 102 (1914), 148 N.W. 896, is to the same effect and the court, in that case, said:
In re Hall, 34 Neb. 206 (1892), 51 N.W. 750; Johnson v. State, 183 Ala. 79 (1913), 63 So. 163.
It is well settled that a commutation of a sentence is a substitution of a less for a greater punishment. After commutation the commuted sentence is the only one in existence, and the only one to be considered. After commutation, the sentence has the same legal effect, and the status of the prisoner is the same, as though the sentence had originally been for the commuted term.
The above-mentioned statement in State ex rel. Murphy v. Wolfer, supra, was quoted with approval by the courts in Chapman v. Scott, supra, at page 160 and in Ex parte Warren, 265 P. 656, 657 (Okla., 1928). Ex parte Denton, 101 P. (2d) 276, 278 (Okla., 1940), is to the same effect.
In Duehay et al. v. Thompson, 223 Fed. 305 (C.C.A. 9, 1915), the court had imposed two sentences of four years to run consecutively and subsequently the President granted a commutation to make the service on the two four-year terms run concurrently. The Parole Act provided that a person "who has served one-third of the total of the term or terms for which he was sentenced * * *" might be released on parole, and the Parole Board contended that Thompson was required to serve one-third of his original sentence of eight years before being eligible for parole. The court held that he was eligible for parole when he had served one-third of the commuted sentence of four years.
In United States ex rel. Brazier et al. v. Commissioner of Immigration, 5 F. (2d) 162, 165 (C.C.A. 2, 1924), the court said:
The word (commutation) is a term of art and means, and long has meant, the change of one punishment for another and different punishment. A punishment by imprisonment for one year is a different punishment from the fulfillment of a two-year sentence, and this is true even though the change is made when the two-year sentence is half served. So the sentences of these men were changed by substituting for their whole term of imprisonment the performed portion thereof, * * *.
It appears that the special inquiry officer attached some significance to the fact that the commuting authority was not the court which had imposed the original sentence. We do not consider that this factor is material. As we have indicated above, the commuting of sentences is part of the pardoning power of the executive branch and is not a judicial function. Under the constitution and laws of Nevada, the authority to commute sentences is specifically granted to the Board of Pardons and Parole Commissioners of which the Governor is required to be a member.
While the special inquiry officer referred to the body granting the commutation as the Board of Parole Commissioners and while that designation appears in exhibits 7 and 9, it is clear from exhibits 6 and 8 that the commutation was granted by the Board of Pardons and Paroles.
The situation with respect to a commutation of sentence is, of course, readily distinguishable from that which exists where a convict is paroled. One who has been paroled, although permitted to go outside the prison walls, remains in legal theory in the custody and control of the warden of the prison until the completion of the maximum term. The respondent's maximum sentence was 10 years but the record shows clearly that he had no further obligation to the State of Nevada when he was released at the end of 10 months. For that reason, it is also apparent that the commuted sentence was not one of 10 months to 10 years.
People ex rel. Newton v. Twombly, 228 N.Y. 33 (1920), 126 N.E. 255.
Applying the judicial precedents mentioned above to the respondent's case, we must hold that the commuted sentence of 10 calendar months, which was directed by the Board of Pardons and Paroles in November 1953, was substituted for the original sentence which thereupon lost all legal efficacy. This must necessarily be true because there would have been no legal authority for the respondent's release at the end of 10 months since the original sentence required his imprisonment for not less than one year. We believe that no other conclusion is tenable than that the only sentence which can be considered is the commuted sentence of 10 calendar months. It follows, therefore, that the respondent was not sentenced to imprisonment for one year or more and is not amenable to deportation. Accordingly, the proceedings will be terminated.
Order: It is ordered that the proceedings be and the same are hereby terminated.
(July 22, 1955)
Discussion: This case is before us on the Commissioner's motion of May 11, 1955, that we reconsider our order of April 20, 1955.
The respondent was lawfully admitted to the United States in 1949 and his last entry occurred in May 1951. He was convicted in Nevada of a crime involving moral turpitude, committed on or about February 9, 1953, and on April 22, 1953, he was sentenced to imprisonment for not less than one year nor more than ten years. In November 1953, the Board of Pardons and Paroles granted a commutation to become effective on February 23, 1954. The special inquiry officer held that the respondent was deportable under section 241 (a) (4) of the Immigration and Nationality Act. We reached the conclusion that the commuted sentence of ten calendar months was substituted for the original sentence which thereupon lost all legal efficacy, and that the respondent was not amenable to deportation since he must be regarded as not having been sentenced to imprisonment for one year or more.
We have carefully considered the Service motion. A number of court decisions were cited therein for the proposition that, where an indeterminate sentence is imposed, the alien must be considered to have been sentenced to the maximum term even though he is paroled before he has served one year. In our order of April 20, 1955, we had stated that this was the law with respect to paroles but we also cited the judicial precedents which clearly indicated that a different conclusion was required insofar as commutations were concerned. With respect to the proposition mentioned, the Service motion contained the comment, "The basis for this view was that action by the executive or administrative officials after sentence could have no effect upon the sentence to imprisonment." We are not aware that this was the basis for the rule and, in any event, the statement seems inaccurate because a pardon granted by the executive to an alien who is confined would have an effect upon the sentence to imprisonment as well as upon the question of his deportability.
United States ex rel. Paladino v. Commissioner of Immigration, 43 F. (2d) 821 (C.C.A. 2, 1930), cited in the Service motion, appears to have been the first immigration case, involving this question, decided in an appellate court. At page 822 the court indicated that, for other than immigration purposes, indeterminate sentences had long been held to be sentences for the maximum term for which the defendant might have been imprisoned, and the court then applied the same principle to the deportation case it was considering.
The Service makes two contentions. First, various cases were cited for the proposition that effect must be given to a statute as a whole and, if possible, to every clause and part of the statute (a matter which we believe is well-settled law), and reliance is then placed upon the change in phraseology in section 241 (a) (4) of the Immigration and Nationality Act as compared with the similar provision in the predecessor statute. Pretermitting the changes which are unimportant to the respondent's case, we observe that the language employed in the 1917 act is "sentenced to imprisonment for a term of one year or more," and that used in section 241 (a) (4) of the Immigration and Nationality Act is "either sentenced to confinement or confined therefor * * * for a year or more." If we substitute in the latter enactment, the word "imprisonment" for "confinement" we see that the only actual change was the inclusion of the word "either" and the addition of the phrase "or confined therefor."
Ginsberg Sons v. Popkin, 285 U.S. 204, 208 (1932).
In our previous order, we referred to our decision in Matter of M----, E-113322, Int. Dec. No. 654 (1954), and stated that we had there held that an alien was deportable under section 241 (a) (4) of the Immigration and Nationality Act even though he would not have been deportable under the 1917 act because his sentence had been wholly suspended. It is this which represents the change made under the new law. On the other hand, the respondent, having been actually imprisoned for ten months, would be as clearly deportable under the 1917 act as under the 1952 act if a parole, rather than a commutation, were involved. Hence, the change in phraseology has no bearing on the question of respondent's deportability.
As indicated in the Service motion, the court in Miller v. Aderhold, 288 U.S. 206, 210 (1933), stated, "In a criminal case final judgment means sentence; * * *" and a similar statement was made in Pratt v. United States, 102 F. (2d) 275 (C.A.D.C., 1939). In the first case mentioned, the conclusion was reached that the original order of the district court suspending sentence was neither a final nor a valid judgment, and the point decided by the Supreme Court was that the jurisdiction of the trial court is not exhausted until sentence is pronounced, either at the same or a succeeding term. In other words, these cases are merely to the effect that the final action of the trial court in a criminal proceeding is the imposition of sentence but we fail to perceive that this adds anything to the conclusiveness of the judgment since it is subject to reversal on appeal or the judgment imposing sentence may be entirely abrogated and rendered ineffectual by a pardon or commutation from the executive authority.
The second contention of the Service is that, while the cases we had cited established that a commutation is the substitution of a lesser punishment, they "do not support the conclusion that a commutation constitutes a substitution of the sentence to confinement." Other than the bare statement quoted, we find nothing in the Service motion to indicate wherein we were in error in our analysis of the judicial precedents. In our order of April 20, 1955, we cited a number of decisions holding that commutation by the President of the United States or the Governors of States had exactly the same legal effect as though the commuted sentence had been imposed by the court in the first instance and that, after commutation, the commuted sentence is the only one in existence. The additional reasons, which led us to our conclusion, and citations of authority were also set forth. We deem it unnecessary to repeat them here in view of the full discussion of the question in our previous order. Upon reconsideration of the question and for the reasons stated in our order of April 20, 1955, we adhere to our conclusion that the respondent is not deportable on the present record. Accordingly, the motion will be denied.
A few of these are 5 Op. Atty. Gen. 370 (1851); In re Hall, 34 Neb. 206 (1892), 51 N.W. 750; Johnson v. State, 183 Ala. 79 (1913), 63 So. 163; and State ex rel. Murphy v. Wolfer, 127 Minn. 102 (1914), 148 N.W. 896.
Order: It is ordered that the Commissioner's motion of May 11, 1955, be and the same is hereby denied.
(March 21, 1956)
Order: The decision and order of the Board of Immigration Appeals, dated April 20, 1955, in this case are hereby approved.