Beard v. Maynard, 48439

• Decision Date: 01 April 1978
• Docket Number: No. 48439,48439
• Citation: 576 P.2d 611,223 Kan. 631
• Parties: Jim BEARD, Petitioner-Appellant, v. Raymond MAYNARD, Respondent-Appellee.
• Court: Kansas Supreme Court

Page 611

576 P.2d 611

223 Kan. 631

Jim BEARD, Petitioner-Appellant, v. Raymond MAYNARD, Respondent-Appellee.

No. 48439.

Supreme Court of Kansas.

April 1, 1978.

Syllabus by the Court

1. The issuance of a detainer against an inmate in a penal institution based on an out-of-state parole violator warrant does not constitute cruel and unusual punishment in violation of either Section 9 of the Kansas Bill of Rights or the Eighth Amendment to the United States Constitution.

2. Whether a parole should be revoked for a violation of its terms rests within the sound discretion of the parole board. A parole board may in its sound discretion overlook a parole violation and give the offender another chance to make good by continuing him on parole. If it does so, and the offender again violates his parole by committing another crime, the parole board is not precluded from revoking the parole on the basis of the new violation.

3. The mere failure of a parole board to revoke a parole for a parole violation is not, in and of itself, a waiver, pardon, or release of the offender from his status as a parolee.

4. When a parolee is arrested on a new criminal charge, the parole board is not required to execute its warrant immediately. The warrant may be held in abeyance until the intervening charge is disposed of.

5. A parole violator warrant that has been lodged with the penal institution of another jurisdiction as a detainer need not be executed until the violator has completed his sentence at that institution.

6. Each violation of a parole constitutes a separate basis upon which a parole violator warrant can be issued. A dismissal of a prior warrant for want of prosecution does not have a res judicata effect upon a warrant based upon a subsequent parole violation.

E. Roger Horsky, Leavenworth, argued the cause, and was on the brief for appellant.

Roger N. Walter, Asst. Atty. Gen., argued the cause, and Curt T. Schneider, Atty. Gen., Roger M. Theis, Asst. Atty. Gen., and Kenneth D. Doyle, Special Asst. Atty. Gen., were on the brief for appellee.

PRAGER, Justice:

This is an appeal by the petitioner-appellant, Jim Beard, from a judgment of the district court dismissing his petition for a writ of habeas corpus filed pursuant to K.S.A. 60-1501. The essential facts in this case are not in dispute and are as follows: Petitioner, Jim Beard, is an inmate at the Kansas State Penitentiary at Lansing, Kansas. The defendant, Raymond Maynard, is the director of the Kansas State Penitentiary. On October 8, 1963, Beard was convicted in the courts of Alabama of the offense of burglary in two cases. He received consecutive sentences of ten years and eight years for a total of eighteen years in the Alabama penitentiary. On February 2, 1970, Beard was paroled by the Alabama parole board. On December 4, 1970, he was declared a delinquent because of a violation of the prohibition law and a fugitive warrant was issued. On February 4, 1972, Beard was sentenced by a federal court to three years confinement in the United States Penitentiary at Leavenworth, Kansas. While Beard was incarcerated in Leavenworth, Alabama parole authorities placed a detainer on the petitioner. On January 14, 1974, petitioner was mandatorily released from the federal penitentiary. Approximately thirty days before Beard's release, Alabama was advised where the petitioner could be taken into custody under its fugitive warrant. At the time Beard was released from federal custody on January 14, 1974, Alabama parole authorities did not appear. Beard was transferred to the Leavenworth county jail. Pending their arrival, the petitioner was arraigned and released upon a $1,000 appearance bond. Notice was given to the Alabama authorities that a hearing would be held on February 13, 1974, concerning his transfer to Alabama. Once again, the Alabama authorities failed to appear. It is undisputed that the Alabama authorities had notice of both the January and February hearings. As a result of the failure of the Alabama authorities to appear, the magistrate court of Leavenworth county dismissed the fugitive warrant which charged the petitioner with being a parole violator from Alabama.

In a letter dated April 23, 1974, the Alabama parole authorities advised the director of the Kansas board of probation and parole that the prior parole delinquency had been declared void by the Alabama board and that the fugitive warrant previously issued had been withdrawn. The Alabama board requested that the Kansas authorities investigate the feasibility of supervising Beard by Kansas state parole officers on the Alabama parole which had been reinstated. In May of 1974, Beard was visited by a Kansas parole officer. Beard refused to accept Kansas supervision of his Alabama parole. This refusal was reported to the Alabama authorities. At this point, Beard was living and working in Kansas City, Kansas, under the supervision of a United States probation officer.

On June 2, 1974, Beard was involved in the shooting of two men in an apartment in Kansas City, Kansas. Shortly after the shooting, Beard was taken into custody by city police officers. On June 7, 1974, the Alabama state board of pardon and parole declared Beard delinquent on his Alabama parole. On September 16, 1974, Beard was convicted on two counts of second-degree murder and was sentenced to the Kansas State Penitentiary. The circumstances of the two homicides are set forth in the opinion in State v. Beard, 220 Kan. 580, 552 P.2d 900 (1976), which affirmed the homicide convictions. In February of 1975, following the confinement of Beard in the Kansas State Penitentiary, the Alabama authorities filed a parole violator warrant with the Kansas authorities and a detainer was placed on Beard. On October 16, 1975, Beard filed a petition for a writ of habeas corpus in the district court of Leavenworth county. Following the appointment of counsel for the petitioner, a hearing was held to consider the merits of the petition. On November 11, 1975, following the hearing, the district court determined that the petition was without merit and entered judgment denying the writ. The petitioner Beard appeals from that decision.

The points raised on the appeal are essentially those raised in the trial court. At the outset it should be pointed out that the jurisdiction of the district court of Leavenworth county was invoked pursuant to K.S.A. 60-1501. It was the position of the petitioner that the defendant director of the Kansas State Penitentiary, by honoring the Alabama parole violator warrant, had caused petitioner's conditions of confinement to be harsher than if no detainer were on file. He contended that as a result of the outstanding Alabama warrant the petitioner had been denied reclassification from a maximum security risk and had therefore been denied the right to participate in certain programs provided at the penal institution. This court has recognized jurisdiction in the district court of Leavenworth county in habeas corpus proceedings brought pursuant to K.S.A. 60-1501 to adjudicate claims dealing with conditions of confinement in a penal institution. (Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972).) We have also held that habeas corpus may be used to determine the validity of a detention under an out-of-state fugitive warrant. (In re Jones, 154 Kan. 589, 121 P.2d 219 (1942).) K.S.A. 60-1507 has no application in this case since the petitioner is not attacking the validity of a sentence in the court which imposed the sentence.

Petitioner's first point on the appeal is that the circumstances of the case as set forth above, resulting in harsher conditions of confinement than if no detainer were on file, constitute cruel and unusual punishment. He complains that when he was in a federal prison, Alabama made no attempt to secure custody of petitioner for his parole violations. He argues that the Alabama parole authorities can't seem to make up their minds whether to take petitioner into custody and that there is no reason to believe that, at the conclusion of petitioner's present sentence in Kansas, Alabama would actually attempt to gain custody of petitioner to answer for his parole violations. Viewed in this light, Beard contends that the continuing threat of the Alabama detainer constitutes cruel and unusual punishment. The petitioner has not cited any authority for the position that the issuance of a parole violator warrant in and of itself constitutes cruel and unusual punishment in violation of either Section 9 of the Kansas Bill of Rights or the Eighth Amendment to the United States Constitution. The question of what constitutes cruel and unusual punishment as that term is used in state and federal constitutions has been determined in many jurisdictions. The question was before us recently in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), where we discussed the subject in some depth. In a general way...