In re Varner

Supreme Court of OhioMay 8, 1957
166 Ohio St. 340 (Ohio 1957)

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No. 35095

Decided May 8, 1957.

Criminal law — Pardon and Parole Commission — Action declaring paroled convict a parole violator — Not reviewable in habeas corpus action.

The action of the Pardon and Parole Commission, in declaring a paroled convict to be a parole violator before the expiration of the maximum period of his sentence and before his final release by that commission or pursuant to executive clemency, is not reviewable in a habeas corpus proceeding, even though such convict has been returned to the penitentiary or to the reformatory because of such action.

APPEAL from the Court of Appeals for Summit County.

In 1953, petitioner, having plead guilty to an indictment for attempted burglary which is a felony, was sentenced to the Ohio State Reformatory for a term of not less than one nor more than 15 years.

In his petition for a writ of habeas corpus filed in the Court of Appeals for Summit County on November 5, 1956, he alleges that he "was paroled * * * by the Pardon and Parole Commission in September of 1955 upon certain conditions determined by said * * * commission"; that about June 1, 1956, "he was arrested * * * and * * * thereafter * * * indicted by the Grand Jury of Summit County" for grand larceny; that during the trial on that charge the court on October 26, 1956, dismissed the proceeding and ordered that defendant "be discharged from further custody"; that "a parole officer of the Pardon and Parole Commission * * * filed with" the sheriff "a form signed by him as parole officer, such form being captioned `Order to Hold' and dated June 1, 1956, directed to Akron police, and states that in accordance with Section 2965.21 of the General Code of Ohio [ sic], please commit and hold in custody" the petitioner "until released by the undersigned"; and "that he has not violated any of said conditions of his parole and that no determination or judgment of said Pardon and Parole Commission was made that he violated the conditions of his parole from the time of his arrest to the time of said * * * order of the Court of Common Pleas * * * dismissing the case against him and ordering that he be discharged from further custody, and that any determination or judgment of said * * * commission that * * * petitioner * * * violated the conditions of his parole would be arbitrary, fraudulent, false, capricious and an abuse of discretion, and that any such judgment or determination of said Pardon and Parole Commission would be beyond its statutory powers and an unlawful denial of the legal and constitutional rights of * * * petitioner, and that petitioner has not been given any notice or knowledge of any alleged violation of any of the conditions of his parole, and has been denied and has not been given any hearing concerning any alleged violations of the conditions of his parole."

The Pardon and Parole Commission "declared" petitioner to be "a parole violator effective November 8, 1956," and ordered his return to the Ohio State Reformatory.

The Court of Appeals on January 18, 1957, found that the petitioner was "lawfully imprisoned by the * * * sheriff * * * and that the Pardon and Parole Commission" was "not properly before" the court and thereupon dismissed the petition as to the commission and ordered that petitioner be remanded to the custody of the sheriff.

It is conceded that the sheriff, at the request of the commission, has heretofore returned petitioner to the Ohio State Reformatory.

The cause is now before this court on appeal from the foregoing judgment of the Court of Appeals.

Mr. James M. Hinton and Mr. Albert J. Landi, for appellant petitioner.

Mr. William Saxbe, attorney general, Mr. James F. DeLeone and Mr. Joseph Marchese, for appellee state of Ohio.


Because of our reasons for this decision, it is not necessary to decide some of the questions raised by the parties. For example, it is not necessary to determine whether the Court of Appeals erred in dismissing the action as against the Pardon and Parole Commission. We will assume, without deciding, that petitioner is correct in his contention that, since the petitioner was being held in Summit County by the sheriff of Summit County who was served in that county, the Court of Appeals for Summit County did secure personal jurisdiction over the commission by service on it outside Summit County. See Glass v. McCullough Transfer Co., 159 Ohio St. 505, 112 N.E.2d 823. But cf. State, ex rel. Barber, Pros. Atty., v. Rhodes, Aud., 165 Ohio St. 414, 136 N.E.2d 60. It may reasonably be argued that, if the Court of Appeals secured personal jurisdiction over the commission, then even the commission's proper removal of the petitioner from Summit County to the reformatory at Mansfield after the dismissal of the action by the Court of Appeals would not result in the case becoming moot when subsequently before this court on appeal from that order of dismissal.

As we view it, the decisive question of law to be determined is whether the action of the Pardon and Parole Commission, in declaring a paroled convict to be a parole violator before the expiration of the maximum period of his sentence and before his final release by the commission, is reviewable in a habeas corpus proceeding, even though such convict is returned to the reformatory or to the penitentiary because of such action.

Outside Ohio, the authorities on this question are apparently in conflict. Annotation, 29 A.L.R. (2d), 1074.

Whether such right of review should be recognized in Ohio will depend to a substantial extent upon the interpretation of our applicable statutes.

The sections of our Revised Code so far as we regard them as pertinent to the decision of the instant case read:
Section 2965.01. "As used * * *:
"* * *
"(E) `Parole' means the release from confinement in any state penal or reformatory institution, by the Pardon and Parole Commission upon such terms as the commission prescribes. A prisoner on parole is in the legal custody of the Department of Mental Hygiene and Correction, and under the control of the commission.
"* * *
"(G) `Convict' means a person who has been convicted of a felony under the laws of this state, whether or not actually confined in a state penal or reformatory institution, unless he has been pardoned or has served his sentence."
Section 2965.09. "The Pardon and Parole Commission may exercise its functions and duties * * * in relation to the parole of a prisoner eligible for parole, upon the initiative of the head of the institution wherein the prisoner is confined, or upon its own initiative. * * * The commission may investigate and examine, or cause the investigation and examination of prisoners confined in state penal or reformatory institutions concerning their conduct therein, their mental and moral qualities and characteristics, their knowledge of a trade or profession, their former means of livelihood, their family relationships, and any other matters affecting their fitness to be at liberty without being a threat to society.
"The commission may * * * order the parole of any prisoner, if in its judgment there is reasonable ground to believe that, if * * * the prisoner is paroled, he will be and remain at liberty without violating the law, and that the granting of such * * * parole is consistent with the welfare and security of society. * * *"
Section 2965.17. "Subject to the limitations imposed by law, the Pardon and Parole Commission may determine the time when, the period for which, and the conditions in accordance with which any prisoner confined in a state penal or reformatory institution may be allowed to go upon parole outside the building, enclosure, and premises of the institution to which he has been committed, assigned, or transferred. When a paroled prisoner has performed all the conditions of his parole the commission shall finally release him.
"A prisoner who has served the maximum term of his sentence or who has been granted his final release by the commission, shall be restored to the rights and privileges forfeited by his conviction. * * *"
Section 2965.18. "At least three weeks before the Pardon and Parole Commission * * * grants any parole, notice of the pendency of such matter * * * shall be sent to the prosecuting attorney and the judge of the court * * * in which the indictment against the convict was found. * * * The said notice shall be published once each week for two consecutive weeks in a newspaper * * * of general circulation in said county. * * * notice of the further consideration of such matter shall be given by mail to the proper judge and prosecuting attorney at least ten days before * * * further consideration * * *."
Section 2965.20. "Persons * * * paroled shall be supervised by the Pardon and Parole Commission and by the proper state parole and field officers. The purpose of such supervision is to require them to comply with the conditions of their * * * parole and to assist them to become law-abiding members of society."
Section 2965.21. "* * * a prisoner who has been paroled, who in the judgment of the Pardon and Parole Commission has violated the conditions of his * * * parole shall be declared a violator. In the case of * * * person who has been declared a violator, the time from the date * * * of the declared violation of his * * * parole to the date of * * * return shall not be counted as a part of time or sentence served. For violation of the conditions of a * * * parole, any parole officer having custody or charge of such violator, any sheriff * * * or police officer shall make the arrest. A person so arrested may be confined in the jail * * * until released, paroled, or removed to the proper institution. In the case of every arrested parole violator, the commission shall determine whether such arrested person shall be released upon the same conditions as the original parole or paroled upon different conditions or shall be imprisoned in a penal or reformatory institution. In the case of a determination of imprisonment, the prisoner shall be returned to the institution from which he was paroled. In the case of * * * parole, the commission shall issue its orders accordingly, and the prisoner shall be * * * paroled in accordance with such order. * * * The procedure for submitting such matters to the commission and the hearing and disposition thereof shall be governed by the rules and regulations adopted by the commission. * * *"
Section 2965.23. "A prisoner serving a sentence of imprisonment for life for a crime other than treason or murder in the first degree, or a prisoner sentenced for a minimum term or terms * * * longer than 15 years, shall become eligible for parole at the expiration of ten full years' imprisonment. * * *"

In recognizing the legislative power "to dispense with notice or a hearing as part of the procedure of probation" on the revocation of a suspension of a sentence, it was said by Mr. Justice Cardoza in the opinion of the court in Escoe v. Zerbst, Warden, 295 U.S. 490, 492, 79 L. Ed., 1566, 55 S. Ct., 818:

"Probation or suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions with respect of its duration as Congress may impose."

In our opinion, the same observation may be made with respect to a parole. Thus in Fuller v. State, 122 Ala. 32, 26 So. 146, 82 Am. St. Rep., 17, 45 L.R.A., 502, it was said with respect to a contention that a prisoner had been deprived of his constitutional rights by a summary order directing rearrest and return to custody:

"This position takes no account of the fact that the person being dealt with is a convict, that he has already been seized in a constitutional way, been confronted by his accusers and the witnesses against him, been tried by the jury of his peers secured to him by the Constitution and by them convicted of crime, and been sentenced to punishment therefor. In respect of that crime and his attitude before the law after conviction of it he is not a citizen, nor entitled to invoke the organic safeguards which hedge about the citizen's liberty, but he is a felon, at large by the mere grace of the executive * * *."

See also Ughbanks v. Armstrong, Warden, 208 U.S. 481, 52 L. Ed., 582, 28 S. Ct., 372.

A strained construction of some of the language of our statutes relating to parole might support an inference of a legislative intent that there is to be a hearing before a prisoner on parole is declared to be a parole violator, or at least before the Pardon and Parole Commission determines that such violator should be again imprisoned. See Section 2965.21, Revised Code. In our opinion, however, no such legislative intent should be recognized unless it has been clearly expressed. In many instances, potential witnesses justifiably are fearful of testifying publicly against a paroled convict. Therefore, in order to determine whether or not the protection of society from such a convict requires that he be declared a parole violator and again imprisoned, it may be necessary for the commission to rely upon secret investigations. State, ex rel. McQueen, Atty. Genl., v. Horton, Judge, 31 Ala. App. 71, 14 So.2d 557, affirmed, 244 Ala. 594, 14 So.2d 561. Also, if the action of the commission in determining that a paroled convict has been a parole violator or that such a violator should be again imprisoned could not be taken until after a judicial inquiry, the resulting burdens of administration on the commission and its desire to protect the public would undoubtedly discourage the commission from granting many paroles that it otherwise would grant. See Owen v. Smith, Warden, 89 Neb. 596, 131 N.W. 914. Such a result would defeat one of the expressed purposes of the General Assembly "to assist" convicts "to become law-abiding members of society." Section 2965.20, Revised Code. Furthermore, as stated in the opinion in In re Anderson, 191 Ore., 409, 428, 229 P.2d 633, rehearing denied, 230 P.2d 770, 29 A. L.R. (2d), 1051:

"The modern release procedures whereby a paroled prisoner remains, not only in the constructive custody of a parole board or officer, but also under the guidance and observation of trained officials, are in marked contrast to the older procedures whereby a court or Governor issued a parole with little real opportunity for supervising the conduct of the prisoner. As the opportunities for intimate knowledge concerning the character and conduct of a parolee increase, the probability of informed action in granting or revoking the parole likewise increases and the necessity of the judicial type of hearing accordingly decreases."

There are statutory expressions which clearly indicate a legislative intent that a convict should be on parole only where his freedom would be consistent with the protection, welfare and security of society. Section 2965.09, Revised Code. It is apparent that the General Assembly expressly regarded such protection, welfare and security as of far more importance than even the temporary freedom on parole of any convicted felon.

There is no express statutory requirement of any hearing before the commission declares a parolee to be a violator, and, where he is a violator, he may be arrested forthwith. Also, there is no apparent limitation provided with respect to the authority and power of the commission to determine that a parole violator should be imprisoned. Section 2965.21, Revised Code. In contrast there are some limitations on the authority of the commission to parole a convict. Sections 2965.18 and 2965.23, Revised Code.

Under our statutes, one convicted of a felony does not cease to be a convicted felon when he is paroled. There is no "remission of penalty" as there is with respect to a pardon. Subdivision (B) of Section 2965.01, Revised Code. As our statutes indicate, when a person is paroled, he is thereby merely released from confinement in a penal or reformatory institution. While on parole, he still remains "in the legal custody of the Department of Mental Hygiene and Correction and under the control of the commission." Subdivision (E) of Section 2965.01, Revised Code. His position, though usually more desirable, is in substance similar to that of a prisoner in a penal or reformatory institution who, because of good behavior, may, as a so-called "trusty," be allowed temporarily to leave the confines of the institution, but who is obviously, while enjoying that privilege, still within the legal custody and under the control of the head of that institution. It would hardly be contended that such a prisoner would be entitled to any hearing because of a determination by the head of the institution that he was no longer entitled to privileges which he had previously been accorded as a trusty. Nor could it reasonably be contended that any court should be required to review such a determination in the absence of legislation specifically providing therefor. The convicted felon is such either by reason of his plea of guilty or by reason of the determination of a jury that his guilt has been proved beyond a reasonable doubt. He does not cease to be a convicted felon merely because he has been paroled. See Johnson v. Walls, Warden, 185 Ga. 177, 194 S.E. 380; Bunch v. Clark, Warden, 185 Ga. 179, 194 S.E. 382; Mahan v. Buchanan, 310 Ky. 832, 221 S.W.2d 945; and McCoy v. Harris, Warden, 108 Utah 407, 160 P.2d 721. He may thereby be accorded privileges which include a substantial degree of freedom, but our statutes do not recognize that the privileges resulting from his parole are to be irrevocable before he has either "served the maximum term of his sentence or * * * been granted his final release by the commission." Section 2965.17, Revised Code.

In Ex Parte Tischler, 127 Ohio St. 404, 188 N.E. 730, this court held that a prisoner confined in the penitentiary did not have any right to a parole. In the opinion by Allen, J., it is stated at page 411:

"Under the law as it now exists, the safeguard for the prisoner must be in the conscientious, fairminded and humane viewpoint of the Board of Parole. A discretionary duty, with great power, is confided to the board under the statutes."

See also State, ex rel. Newman, v. Lowery et al., Ohio Pardon and Parole Commission, 157 Ohio St. 463, 105 N.E.2d 643, where this court recognized that "the question of parole of prisoners" is "in the discretion of the Pardon and Parole Commission."

If under our statutes a convict has no right to a parole, it would seem that he should have no right to contest what may be in substance a revocation of his parole (that is the commission's declaring him to be a parole violator and determining that he should again be imprisoned) unless there is a clear statutory expression of an intent to confer such a right upon him. We find no such statutory expression.

Reference has been made to certain decisions of our Courts of Appeals indicating that one who is charged with having violated his probation is entitled to a judicial inquiry after reasonsonable notice. See State v. Skypeck, 77 Ohio App. 225, 65 N.E.2d 75; City of Lima v. Beer, 90 Ohio App. 524, 107 N.E.2d 253; and State v. Nowak, 91 Ohio App. 401, 108 N.E.2d 377. Without expressing any opinion as to whether this court would agree with the conclusions indicated by those decisions, it may be noted that there are statutory expressions from which a legislative intention to provide for such a hearing might be inferred with respect to one charged with having violated his probation. See Section 13452-7, General Code (now Section 2951.09, Revised Code). There are no similar statutory provisions applicable to one claimed to be a parole violator. Furthermore, as stated in In re Anderson, supra ( 191 Ore., 409), 424:

"The judicial power of a court * * * to suspend the pronouncement of sentence and award probation or thereafter to revoke the probation and pronounce sentence is clearly distinguishable from the power of an authorized administrative body to grant or revoke a parole. When a court suspends the pronouncement of sentence, the judicial process has not been completed. It remains in a state of suspense; not so in the case of a prisoner who has been sentenced and imprisoned."

Our conclusion is that the action of the commission, in declaring petitioner to be a parole violator before the expiration of the maximum period of his sentence and before he has been granted his final release by the commission, is not reviewable in a habeas corpus proceeding. It follows that the judgment of the Court of Appeals must be affirmed.

Judgment affirmed.

WEYGANDT, C.J., ZIMMERMAN, STEWART, BELL, MATTHIAS and HERBERT, JJ., concur.

(Emphasis in footnote added.)