Burgess v. Cunningham

• Decision Date: 30 November 1964
• Citation: 205 Va. 623,139 S.E.2d 110
• Parties: Donald J. BURGESS v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, etc.
• Court: Virginia Supreme Court

Page 110

139 S.E.2d 110

205 Va. 623

Donald J. BURGESS v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, etc.

Supreme Court of Appeals of Virginia.

Nov. 30, 1964.

Rehearing Denied Jan. 18, 1965.

Buford M. Parsons, Jr., Richmond (G. Kenneth Miller, Richmond, on brief), for petitioner.

Reno S. Harp, III, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for respondent.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.

SNEAD, Justice.

The petitioner, Donald J. Burgess, invoked the original jurisdiction of this court pursuant to § 88 of the Constitution of Virginia, Code, § 17-97 and Rule 1:4, Rules of Court, and filed a petition and an amended petition for a writ of habeas corpus ad subjiciendum against W. K. Cunningham, Jr., Superintendent of the Virginia State Penitentiary (C. C. Peyton, now Superintendent, substituted respondent). The petitioner alleges that he is being wrongfully detained beyond the term of his sentence because of the respondent's failure to allow him credit for the time he was out on parole.

On July 29, 1958, the petitioner was convicted of robbery in the Court of Hustings for the City of Portsmouth and sentenced to serve a term of eight years in the State penitentiary. The sentence was subsequently commuted to seven years and eight months because the petitioner donated blood. On April 26, 1960, the petitioner was released on parole by the Virginia Parole Board. The Board ordered the petitioner to comply with the customary general conditions of parole and also certain special conditions. The order of release containing those provisions, to which the petitioner agreed, is printed in the margin. ¹

On October 27, 1962, the petitioner was arrested and returned to the penitentiary for violating the conditions of his parole. On November 16, 1962, the Board revoked the petitioner's parole. He had been out on parole two years, six months, and one day.

The petitioner has presented one issue for our determination: '* * * whether or not a prisoner is entitled to credit upon the term of his sentence for time spent upon parole but subject to the control, restriction and direction of the Virginia Parole Board.'

The answer to the question involves an interpretation of Code, § 53-256, which reads: 'Time on parole not counted as part of term.--The time during which a parolee is at large on parole shall not be counted as service of any part of the term of imprisonment for which he was sentenced upon his conviction.' (Italics supplied.)

The petitioner contends that during the period of parole he was not 'at large on parole' within the meaning of § 53-256. He argues that he was 'at large' only from the time that a warrant issued for his arrest until the time that he was apprehended. The respondent, on the other hand, contends that the petitioner is bound by the plain meaning of the words 'at large on parole' as they appear in § 53-256.

Section 53-260 provides that when a warrant issues for the arrest of a parolee, the parolee shall be treated as an escaped prisoner and that '* * * the time from the issuing of such warrant to the date of his arrest shall not be counted as any part of the time to be served under his sentence.'

Section 53-262 reads: 'Whenever any parolee is arrested and recommitted * * *. The Board, in its discretion, may revoke the parole and order the reincarceration of the prisoner for the unserved portion of the term of imprisonment originally imposed upon him, or it may reinstate the parole either upon such terms and conditions as were originally prescribed or as may be prescribed in addition thereto or in lieu thereof.' (Italics supplied.)

It is manifest from a reading of §§ 53-256, 53-260 and 53-262 that the General Assembly intended that a parolee is not entitled to have his parole time, either before or after the issuance of a warrant for his arrest, credited upon his sentence.

In 39 Am.Jur., Pardon, Reprieve and Amnesty, § 93, p. 577 it is said:

'* * * In other courts, perhaps a majority, it has been held that a parole operates as a suspension of the convict's sentence during the liberty so granted, so that on a violation of its terms the convict may be compelled to serve the full portion of his term which was unexpired when the parole was granted. This conclusion is reached in some jurisdictions by virtue of the terms of statutes, or by the terms of the parole.'

In People v. Doras, 290 Ill. 188, 192, 125 N.E. 2, 4, the court had this to say: '* * * When on parole the convict cannot be said to be imprisoned in the penitentiary. While he is still under the control of the state during his term of parole, it does not follow that he is serving a term of imprisonment in the penitentiary.'

In the case of In re Patterson, 94 Kan. 439, 146 P. 1009, L.R.A.1915F, 541, Patterson sought a writ of habeas corpus. The district court, pursuant to statutory authority, had paroled Patterson upon certain conditions and restrictions. The statute provided in part: 'If a parole shall be terminated, the time such person shall have been at large on parole shall not be deducted from the time he shall be required to serve, but the full amount of the fine shall be collected or the full time in jail be served, the same as if no parole had been granted.' (Italics supplied.)

Patterson's parole was revoked by the court for violation of its terms. It was contended by Patterson in the habeas corpus proceeding that he had been denied due process of law because his parole was revoked without notice, a hearing or the filing of an affidavit for his re-arrest. In denying the writ, the Supreme Court stated in part: '* * * Although the prisoner is conditionally released, the sentence is not set aside, nor is the offense expiated. He is still under the supervision of the court, and subject to be remanded to prison if he fails to perform or violates the conditions of the parole. * * * The failure of the convict to observe the conditions of a parole is not a new offense, and the revocation of the parole and the returning of the convict to prison is not an added punishment for the offense of which he was convicted, nor a punishment for any other offense, but it is rather a disciplinary regulation of prison management in carrying out the sentence of the law already imposed, and growing out of the effort to ameliorate the condition of the convict. * * *'

In Wilborn v. Saunders, 170 Va. 153, 195 S.E. 723, the Governor pardoned Wilborn, who had been sentenced to serve several terms in the penitentiary, upon certain conditions. Wilborn was required to report to the clerk of the court in which he was convicted immediately upon his release and each month thereafter until the terms for which he was sentenced had expired. Another condition provided that if he was ever again found guilty of a violation of the penal laws of the Commonwealth the pardon would become null and void. Subsequent to the expiration of the sentences imposed, Wilborn was convicted for violating the penal laws of the Commonwealth. The Governor revoked his pardon and ordered that he be returned to the penitentiary to serve such portion of the sentences as had not been served on the date the conditional pardon was granted.

The prisoner contended that during the period that he was directed to report to the clerk of the court he was still in custody and should be given credit for that time. We held that reporting to the clerk was merely a compliance with one of the conditions imposed and in no sense should this period be considered a part of the execution of the sentences. We said:

'The policy of the state, as expressed in the probation or parole statutes, denies to the paroled prisoner credit for the time that he is at large on parole.' 170 Va. at p. 162, 195 S.E. at p. 727.

The petitioner does not challenge the constitutionality of Code, § 53-256. He takes the position that during the period of parole he was not 'at large on parole' and hence the provisions of § 53-256 are not applicable.

In support of his position, he cites Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285, 92 A.L.R.2d 675. In that case it was held, among other things, that since Jones was on parole...