Opinion
No. 36784
Decided December 28, 1960.
Criminal law — Term of sentence — Prisoner not entitled to credit for period of parole violation — Period ceases when prisoner available for return to custody.
IN HABEAS CORPUS.
On May 20, 1942, petitioner pleaded guilty to a charge of burglary and larceny and was committed to the Ohio State Reformatory on May 22, 1942, to serve a term of from one to fifteen years.
He was paroled on July 1, 1943, and declared a parole violator on July 7, 1944. During the period in which he was declared to be a parole violator, he was arrested in Connecticut in 1944, in Massachusetts in 1945, in Maine in 1945, and in Massachusetts in 1946 and 1947, all for minor offenses. In 1948 he was arrested in Connecticut and on November 9, 1948, was returned to the Ohio State Reformatory as a parole violator.
He was again paroled on January 17, 1951, was declared a parole violator on December 5, 1951, and on October 24, 1952, was returned as a parole violator. He was paroled on December 23, 1954, was declared a parole violator on September 22, 1955, was returned as a parole violator on September 28, 1955, and, on October 20, 1955, his parole was revoked to September 1957.
He was transferred to the Ohio Penitentiary on February 21, 1957, was paroled on February 6, 1958, was declared a parole violator on April 17, 1958, was available for return on June 20, 1958, and on August 14, 1958, was returned. He was paroled on October 15, 1959, was declared a parole violator on December 22, 1959, was available on December 24, 1959, and on January 25, 1960, was returned to custody.
As a result of the foregoing parole violations, petitioner has lost a total of approximately five years and five months, which time has been added to the time he is required to serve in order to complete his maximum sentence, which will extend to October 1962.
Petitioner now seeks his release by this proceeding in habeas corpus, contending that the maximum 15-year sentence imposed on May 22, 1942, automatically expired in May 1957; that he has served more than the maximum sentence of 15 years; that the parole and record clerk cannot alter the expiration date of a fixed maximum sentence; and that petitioner is entitled to credit for time served from the date of his arrest.
Mr. Lee Gosier, in propria persona. Mr. Mark McElroy, attorney general, and Mr. Aubrey A. Wendt, for respondent.
Two questions are presented by petitioner: (1) Does the parole and record clerk have power to regulate the term of a sentence, and (2) where a convict is declared a parole violator, is the time from such declaration to the date of his return counted as a part of his sentence.
Obviously, the parole and record clerk has no regulatory power over sentences and, in the instant case, was not attempting to exercise such power. The length of time a convict must serve for the commission of a crime is prescribed by statute.
A parole violator is not entitled to credit for the period of his declared violation. Since 1959, that period ceases when he becomes available for return to custody. Section 2965.21, Revised Code. Prior to 1959, the statute merely provided that that period ceases when he is declared a parole violator. Petitioner has not served the maximum sentence imposed and, therefore, is not entitled to his release by habeas corpus.
Petitioner remanded to custody.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.
O'NEILL, J., not participating.