Balsley v. Com.

• Decision Date: 26 May 1967
• Citation: 428 S.W.2d 614
• Parties: Olin BALSLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 614

428 S.W.2d 614

Olin BALSLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 26, 1967.

Rehearing Denied June 28, 1968.

Allan Weiss, Louisville, for appellant.

Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.

PALMORE, Judge.

Appellant, Olin Balsley, is a prisoner in the federal pentitentiary at Atlanta, Georgia. He appeals from an order of the Jefferson Circuit Court overruling his petition for relief from the further enforcement of a life sentence theretofore imposed upon him by that court pursuant to a conviction for armed robbery.

The record discloses that Balsley was placed on parole from his life sentence on April 12, 1964. On August 8, 1964, a probation and parole officer issued an authorization for his arrest and detention, cf. KRS 439.430(1), pursuant to which he was arrested and lodged in the Jefferson County jail on the next day. At some time during the next several days witnesses brought from South Bend, Indiana, identified him as one of the persons who had committed a bank robbery there. On August 17, 1964, he was arraigned in federal court on a charge of armed robbery, placed under $5,000 bond, and returned to the Jefferson County jail. On August 25, 1964, by authority of the Director of the Division of Probation and Parole, Department of Corrections, the probation and parole officer who had issued the arrest authorization of August 8, 1964, wrote the sheriff (and jailer) of Jefferson County as follows:

'This will confirm our telephone conversation and is your authority to release Olin Balsley who is charged with a Federal Warrant for armed robbery. He is to be returned to South Bend, Indiana to stand trial for this offense. Will you please send our detainer which was issued on August 8, 1964, along with him.'

Accordingly, the jailer of Jefferson County delivered Balsley over to a federal marshal and he was taken to South Bend, Indiana, and there tried, convicted, and sentenced to 10 years in prison on the federal charge. He has not been returned to Kentucky. On the basis of the federal charge then pending, the Division of Probation and Parole on August 31, 1964, requested and obtained from the parole board a warrant for Balsley's arrest and return to the penitentiary at Eddyville or the reformatory at La Grange. Cf. KRS 439.430(1).

Balsley's application to the Jefferson Circuit Court, styled 'Petition for Writ of Error Coram Nobis,' and a response and motion to dismiss by the Attorney General were filed on July 27, 1966, and an order dismissing the petition was entered on the same day.

The specific relief demanded in the petition is that the sentence pursuant to which the warrant for Balsley's return to prison in this state has been issued be declared no longer enforceable, upon the ground that his transfer of custody to the federal authorities effected a forfeiture of this state's right to enforce completion of the sentence under which it was holding him at the time of the transfer.

The case is not distinguishable in principle from Davis v. Harris, Ky., 355 S.W.2d 147 (1962), and Thomas v. Schumaker, Ky., 360 S.W.2d 215 (1962). In each of those cases a prisoner held in custody pursuant to a felony conviction in this state was released, without statutory authority, to federal officers for prosecution under a federal charge. In Davis, the transfer of custody was accomplished before the prisoner had commenced to serve his sentence in this state. In Thomas, the prisoner was placed on parole and delivered over to the federal authorities in obeisance to a detainer. In both instances we held that the transfer of custody without statutory authority constituted arbitrary treatment barring further enforcement of the sentence under which the prisoner was being held by this state at the time of the transfer.

In Prather v. Commonwealth, Ky., 368 S.W.2d 175 (1963), relief was denied because at the time custody was taken by the federal authorities the prisoner had not been tried or convicted on the state charge for which he had been arrested. The same factual situation existed in Baker v. Commonwealth, Ky., 378 S.W.2d 616 (1964), in which a paroled convict was arrested on a new and different charge but was not in custody pursuant to his original conviction. It was there pointed out, however, that 'if he had been in custody of the parole authorities under the parole violation warrant this would have been by virtue of his sentence...