Opinion
No. 36148
Decided February 24, 1960.
Criminal law — Pardon and Parole Commission — Action declaring paroled convict a parole violator — Not reviewable in habeas corpus action.
IN HABEAS CORPUS.
The petitioner, who seeks his release from the Ohio Penitentiary by this habeas corpus proceeding instituted in this court, was indicted for burglary and larceny, represented by counsel, tried to a jury, convicted, and, in November 1944, sentenced to the penitentiary for an indefinite term (one to fifteen years).
Petitioner was granted a parole from the penitentiary in February 1950 and was declared a parole violator in March 1950, when he absconded from the state. He was thereafter convicted of a crime in Indiana and sentenced to the Indiana State Prison from which he was released in October 1955, at which time he was restored to parole to run concurrently with his parole in Indiana. He was then extradited from Indiana to Illinois where he was charged with a crime. The charge there was dropped, and petitioner was released to Ohio under extradition, pursuant to petitioner being declared a parole violator in March 1957. He was returned to the Ohio Penitentiary on May 4, 1957.
Petitioner contends that he is being held without proper commitment; that he was returned to Ohio without proper authority; that he is being held over the prescribed time for the offense originally committed; that he has served the time required while on parole; and that respondent has lost jurisdiction over petitioner.
Mr. Grant Rigg, in propria persona. Mr. Mark McElroy, attorney general, Mr. William M. Vance and Mr. William Boyko, for respondent.
The period from March 1950, when petitioner was declared a parole violator, to October 1955, when he was released from the Indiana State Prison, at which time he was restored to parole by respondent, cannot be counted as time toward the serving of his maximum sentence. Section 2965.21, Revised Code.
The action of the Pardon and Parole Commission in declaring petitioner to be a parole violator before the expiration of the maximum period of his sentence and before his final release by that commission is not reviewable in a habeas corpus proceeding, even though petitioner has been returned to the penitentiary because of such action. In re Varner, 166 Ohio St. 340.
Petitioner remanded to custody.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.