United States v. Croft, 71-1004.

• Decision Date: 17 November 1971
• Docket Number: No. 71-1004.,71-1004.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bert CROFT, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

450 F.2d 1094 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Bert CROFT, Jr., Defendant-Appellant.

No. 71-1004.

United States Court of Appeals, Sixth Circuit.

November 17, 1971.

John Montjoy, Louisville, Ky. (Court appointed), for defendant-appellant; J. Larry Cashen, Wyatt, Grafton & Sloss, Louisville, Ky., on brief.

Edward M. Steutermann, Louisville, Ky., for plaintiff-appellee; George J. Long, U. S. Atty., A. Duane Schwartz, Asst. U. S. Atty., Louisville, Ky., on brief.

Before MILLER and KENT, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

Appellant Croft was sentenced by the District Court to a term of three years for violation of a federal statute. Thereafter, he was indicted and convicted in the state court for violation of two state charges, and sentenced to a term of two years to run concurrently, one with the other, and with the federal sentence. However, instead of first being sent to a federal penitentiary, he was sent to the state prison. When he was released from the state prison, the United States Marshal took him into custody and delivered him to the federal penitentiary. Appellant moved in the District Court for an order granting him credit toward the federal court sentence for all of the time he had served in jail and on the state court sentences since the date of his federal sentence. The District Court denied the motion; and we review by appeal.

A comprehensive statement of the facts and circumstances of the case is necessary to an understanding of the issues presented, their disposition by the District Court, and our determination on appeal.

On April 2, 1969, appellant Croft was arrested by the United States Marshal for violation of Title 18, U.S.C.A., Section 2313, in knowingly concealing a stolen 1966 Chevrolet automobile, knowing it to have been stolen and to have been moved in interstate commerce from Nashville, Tennessee, to Louisville, Kentucky. Appellant was, on the same day, released on bond of $1,000 conditioned upon his appearance before the United States District Court in Louisville on October 6, 1969, at 9:30 A.M.

The case came before the District Court on the appearance date of October 6, 1969, but was passed to October 13, 1969, because, a short time before, on September 25, 1969, appellant had been arrested on a state charge of possession of burglary tools, and was being confined in the Jefferson County jail in Louisville on that charge.

Because of appellant's arrest on the state charge, it was necessary for the District Court to issue a writ of habeas corpus ad prosequendum in order to bring him, from the Jefferson County jail, before the District Court for hearing on the federal charge of concealing the Chevrolet car with knowledge that it had been stolen; and on October 13, 1969, appellant was produced in court by the Marshal. On the same day, appellant pleaded guilty to the one count of the indictment. He was then sentenced to imprisonment for a period of three years, and immediately committed to imprisonment. Appellant was then returned to the Jefferson County jail.

To recapitulate: On April 2, 1969, when appellant was arrested on the charge to which he later pleaded guilty in the federal court, he was not in state custody for any offense; and he was not in state custody when he was released on bond on April 2, 1969, conditioned upon his appearance in federal court on October 6, 1969.

After appellant was sentenced in the federal court on October 13, 1969, and returned to the county jail, he was taken before the Jefferson County Criminal Court of Kentucky on November 13, 1969, and sentenced for a term of two years each on two separate charges. The state court's sentence was that the two sentences of two years each were to run concurrently, one with the other, and also concurrently with the three-year sentence in the federal court above mentioned.

However, instead of being taken into custody by the United States Marshal at Louisville, who had in his hands the mittimus or commitment of appellant on the three-year sentence in the federal court, and thereafter, subsequent to the state court sentence, delivered to a federal penitentiary, appellant was removed from the Jefferson County jail by the Sheriff, who delivered appellant to the state penitentiary at La Grange, Kentucky, to serve the two concurrent state sentences which the state court had ordered to run concurrently with the three-year federal sentence.

After appellant had served ten months and eight days of the two-year sentence of the state court, and had thereafter been granted parole by the state but not yet released, the United States Marshal took him into custody and delivered him to the United States prison at Terre Haute, Indiana, to commence the service of his three-year sentence imposed by the federal court.

When appellant was sentenced by the state court, it was evident from the sentence, itself, that the state court understood that appellant would first serve the sentence imposed by the federal court, as the state court provided the state sentence of two years would run concurrently with the three-year federal sentence.

If appellant had first been delivered by the Marshal to the federal prison, his state sentence would have been served before the conclusion of his federal sentence of three years. Since he was first delivered to the state prison by the Sheriff, his federal sentence of three years would commence after his state sentence of two years. In the first case, his total imprisonment on both federal and state sentences would have totalled three years; in the second case, it would total five years. No one, neither state nor federal judge, considered that appellant should serve more than three years, at the most.

The issue is whether, after the order of commitment was delivered by the District Court to the Marshal, he should have taken appellant into custody and, subsequent to the trial and sentence in the state court, delivered appellant to the federal place of detention for service of the federal sentence prior to delivery of appellant by the Sheriff to the state prison.

The District Court, in denying appellant's motion that he be granted credit for the time already served in jail and in the state penitentiary against the federal sentence of three years, observed:

"For some unexplained reason, Croft was then immediately after the state sentence sent to the Kentucky State Penitentiary at La Grange."

Further, the District Court said:

"Our concern for Croft\'s situation and our desire to effectuate policies of the state judiciary whenever possible tempt us either to reduce Croft\'s sentence or to enter some sort of nunc pro tunc order modifying the federal sentence to run concurrently with the state sentence. However, in view of the fact that more than 120 days have elapsed since the federal sentence was imposed, we are clearly powerless to do so."

Appellee Government in its brief on appeal in this case says that while it "can appreciate some sympathy for appellant's position, appellee can find no legal basis whatsoever to grant appellant the relief which he seeks."

Since it was the understanding and the determination of the state court that appellant would first serve the sentence imposed by the federal court, and that the state court's sentence would run concurrently with it; since counsel for the Government expressed sympathy for appellant's position; and since the District Court, on the motion of appellant asking that credit be granted him for time served under the state sentence, expressed itself as concerned with appellant's situation, and that it was tempted either to reduce appellant's sentence or enter some sort of nunc pro tunc order modifying the federal sentence, but considered itself powerless to do so — it is evident that the state court would consider appellant's plight to be due to a miscarriage of justice, and Government counsel and the District Court would also consider the situation in which appellant was placed to be unjust.

The general rule applicable to this case is that where a court has issued the mittimus and has given authority to the proper officer to enforce it, and such officer refuses to act on it, and turns the prisoner over to another jurisdiction, the court, after the period specified in the mittimus has expired, will refuse to find that the prisoner has not served his sentence, but will assume that he has served...