Bernklau v. Bennett

• Decision Date: 12 November 1968
• Docket Number: No. 53140,53140
• Citation: 162 N.W.2d 432
• Parties: Jake E. BERNKLAU, Appellant, v. John E. BENNETT, Warden Iowa State Penitentiary, Fort Madison, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 432

162 N.W.2d 432

Jake E. BERNKLAU, Appellant, v. John E. BENNETT, Warden Iowa State Penitentiary, Fort Madison, Iowa, Appellee.

No. 53140.

Supreme Court of Iowa.

Nov. 12, 1968.

Comito, Critelli, McNally & Roehrick, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and Thomas L. Tucker, Deputy County Atty., for appellee.

BECKER, Justice.

This habeas corpus proceedings raises a single issue which turns on the sentencing power of the district court. After trial to the court the writ was quashed. We reverse and remand with order to issue the writ and release the petitioner.

Petitioner was convicted of the crime of forgery on June 4, 1959 and commenced serving his sentence immediately. On March 6, 1963 he was paroled. On September 8, 1963 he violated his parole by leaving the state. On January 16--18, 1964 he was arrested, returned to this state and to prison.

On June 21, 1964 petitioner escaped from prison. He was captured shortly thereafter and on June 30, 1964, was charged with the crime of escape In connection with the June 21 action. He was sentenced to five years in prison to commence after his 10-year sentence for forgery had been served.

On October 31, 1964 petitioner was charged with and pled guilty to escape in that he violated his parole by leaving the state on September 8, 1963. (A criminal act under section 745.3, Code of Iowa, 1966.) The court sentenced him to five years in prison and provided: 'This sentence shall run concurrently with the sentence to which the defendant plead guilty to the charge of escape in this Court on the 30th day of June, 1964, but to commence at the expiration of the sentence the defendant was serving at the time he violated his parole.'

For convenience we set forth a short calendar of events in the footnote. ¹

After petitioner had testified to the foregoing facts and stated he had served all of his time but had been refused release, petitioner offered the testimony of Charles E. Wilkins, registrar at the Fort Madison Penitentiary. Mr. Wilkins produced the three mittimuses under which petitioner was being held; i.e., 1959, forgery; June 1964, escape; and October 1964, escape by parole violation.

Mr. Wilkins testified that if the petitioner's time was to be figured by giving effect to the portion of the last mittimus ordering the sentence to run concurrently with the prior escape sentence, petitioner's time would have been up some time in the early part of 1967, but if the latter two sentences were figured to run consecutively his time would not be up until November 21, 1968.

The court made no change in the judgment or the last mittimus. Nevertheless, Mr. Wilkins computed the last two sentences to run consecutively with each other. This was done on the basis of a letter from the deputy county attorney for Lee County which was not introduced in evidence and is not before us. Our only direct knowledge of the contents of the letter comes from the transcript:

'Q. You questioned me as to how these sentences were to be served and computed, and I advised you in my capacity as County or Deputy County Attorney, that the sentence of Plaintiff's Exhibit 3 should run in accordance with the statute? A. That's correct.'

The executive officers ignored the court's judgment and fixed petitioner's sentence in accordance with their own interpretation of the pertinent statutes. This action was doubtless considered to be authorized by our pronouncements in Adams v. Barr, 154 Iowa 83, 134 N.W. 564, discussed in Division III, infra.

I. This matter involves the extent of the trial court's power in sentencing after a conviction of the crime of escape and construction of the statutes from which that power springs.

The district court's general power to order sentences to run concurrently or consecutively as the court shall determine has been recognized by our decisions and by our interpretation of Code section 789.12. In construing section 789.12 in Dickerson v. Perkins, 182 Iowa 871, 873, 874, 166 N.W. 293, 294, 5 A.L.R. 374, we said:

'Terms of imprisonment upon separate convictions can and do run concurrently. We think this proposition is recognized in practically all jurisdictions. Except for such possibility of the concurrence of terms of imprisonment under two or more convictions, there would have been no occasion for the statute either in its original mandatory form or in its later discretionary form. As already stated, the clear implication of the statute is that such terms may run concurrently, unless the court enter judgment otherwise.'

In the absence of specific statutes two or more criminal sentences shall run concurrently unless otherwise provided by the court. The court has the power to order sentences to run consecutively. Of course, if the court specifically provides for concurrent sentences such provision would control absent any other statutory inhibition.

II. The foregoing powers of the district court are restricted by specific legislation relating to escape. Section 745.1, Code, 1966, provides:

'If any person committed to the penitentiary or to the men's or women's reformatory shall break such prison and escape therefrom * * * he shall be deemed guilty of an escape from said penitentiary or reformatory and shall be punished by imprisonment in said penitentiary or reformatory for a term not to exceed five years, To commence from and after the expiration of the term of his previous sentence.' (Emphasis supplied.)

Section 745.3 provides: 'If any person having been paroled from the state penitentiary or state reformatory as provided by law, shall thereafter depart without the written consent of the board of parole from the territory within which by the terms of said parole he is restricted, he shall be deemed to have escaped from the custody within the meaning of section 745.1 and shall be punished as therein provided.'

The meaning of the foregoing emphasized clause concerns us here. The district court clearly had the power to provide all these sentences should run consecutively, i.e., 10 years, plus 5 years, plus 5 years, total 20 years. It clearly did not have the power to provide all three sentences should run concurrently; i.e., total 10 years. Did it have the power to provide the latter two sentences should run concurrently; i.e., 10 years plus 5 years and 5 years (concurrently), total 15 years? The sentencing judge assumed he had the power. The habeas corpus court decided otherwise. We agree with the sentencing court.

The state argues the court had no power to provide for concurrent sentences under the escape and parol violation charges. If the term 'previous sentence' refers to the last previous sentence before the court imposes the current sentence, the State is right. If the term 'previous sentence' refers (as petitioner argues) to the previous sentence at the time the escape is perpetrated, the State would be wrong and the sentencing court had the power to act as it did.

An attorney general's opinion issued on October 3, 1961 concerns a somewhat analogous situation. The prisoners escaped and while at large committed another felony. Before return to face the escape charge, they pled guilty to information charging such felony. The opinion stated the question and answer as follows:

'The question presented by your request, therefore, is whether the words 'previous sentence' in the above section would include the sentence for a crime committed subsequent to the act of escape when such sentence is entered prior to the sentence for the crime of escape. * * *

'It is therefore our opinion that the escape sentence should not commence until the expiration of the last sentence entered prior thereto, whether or not such sentence is for a crime committed subsequent to the act of escape.'

The problem here differs from that posed to the attorney general in several respects but the principles to be considered are very similar. Attorney General opinions are not binding on us nor entitled to the weight of precedent, but should be carefully considered. In re Estate of Clausen, 258 Iowa 324, 330, 139 N.W.2d 196 and The Importance and Value of Attorney General Opinions, 41 Iowa Law Review, 351, 360.

Here our analysis of the statutes and precedents brings us to conclusion different from that arrived at by the attorney general. We do not find the pertinent portion of section 745.1 is so clear as did the attorney general. 'Previous sentence' must refer to a specific sentence. ² The statute is silent as to whether reference is to the sentence being served at time of escape or to all sentences imposed prior to the act of the sentencing court.

The purpose of the clause is to assure that if a...