Opinion
No. 38799
Decided July 1, 1964.
Habeas corpus — Serving of sentence — Violation of parole interrupts running of sentence — Time of sentence not reduced thereby — Time served for other sentences during parole violation not credited.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In June 1942, petitioner, Charles Armstrong, pleaded guilty to assault with intent to rape and was sentenced to the Ohio Penitentiary for a term of one to 15 years. He was paroled on August 6, 1947, was declared a parole violator on September 11, 1947, and was returned to the penitentiary on April 13, 1948. In July 1950, petitioner was again paroled, this time to his sister in Michigan. In 1951, he was sentenced to the Southern Michigan State Penitentiary for a term of one and one-half to five years, and on June 9, 1951, he was again declared a parole violator by Ohio and a detainer was placed on him. Petitioner was released from the Michigan Penitentiary in 1955, but, for some reason, Ohio was not notified of such release. However, some six months later he was again in the Michigan Penitentiary for another offense. He was released from the Michigan Penitentiary in 1959, and in 1960 he was sentenced on a federal charge to the United States Penitentiary at Leavenworth, from which institution he was released in December 1963. He waived extradition and was returned to Ohio.
Mr. Charles Armstrong, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Petitioner's sole contention in the present case is that his Ohio sentence has expired, the time of maximum sentence having passed, so that he is now entitled to release. He bases this contention on two grounds.
First, one of fact. He alleges that he was notified by the Ohio authorities in either late 1952 or early 1953 that he was being restored to parole, and that his time spent in the Michigan Penitentiary would apply to his Ohio sentence. Petitioner presented no evidence in support of this contention, and the prison records introduced into evidence completely refute his claim. Such records show that petitioner was declared a parole violator in 1951, that he was never restored to parole, and that he became available for return to Ohio in December 1963.
Second, petitioner urges that once a sentence commences it never ceases to run until the maximum period has passed, no matter what his actual status is during such period, whether one is at large as a parole violator or confined in another institution.
Under the provisions of Section 2965.21, Revised Code, when one on parole is declared a parole violator, his sentence ceases to run and does not recommence until he is restored to parole or is available for return to the penal institution. Cline v. Haskins, Supt., 175 Ohio St. 480.
Thus, petitioner once having been declared a parole violator, his Ohio sentence ceased to run, and, even though during such period as a parole violator he was confined in the penal institution of another state for other crimes, he was not serving his Ohio sentence, and such period of imprisonment is not credited to his Ohio sentence. During all the period petitioner was at large from the Ohio Penitentiary as a parole violator, his sentence was in abeyance and could recommence only when he was restored to parole by Ohio or was returned to the Ohio penal institution.
A substantial part of petitioner's 1942 sentence remains to be served, and, therefore, he is not entitled to relief in habeas corpus.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.