Cline v. Haskins

• Decision Date: 13 February 1964
• Docket Number: No. 38504,38504
• Citation: 26 O.O.2d 91,196 N.E.2d 440,175 Ohio St. 480
• Parties: , 26 O.O.2d 91 CLINE v. HASKINS, Supt., London Correctional Institution.
• Court: Ohio Supreme Court

Page 480

175 Ohio St. 480

196 N.E.2d 440, 26 O.O.2d 91

CLINE v. HASKINS, Supt., London Correctional Institution.

No. 38504.

Supreme Court of Ohio.

Feb. 13, 1964.

James Emory Cline, in pro. per.

William B. Saxbe, Atty. Gen., and William C. Baird, Columbus, for respondent.

PER CURIAM.

Petitioner urges that his maximum sentence has expired, and that, therefore, he is entitled to release. He bases this contention on the fact that the state made no effort to return him during the times he was incarcerated in the various out-of-state penitentiaries. He urges that by such failure to act Ohio waived any right to require him to fulfill his obligation under the 1943 sentence.

When petitioner pleaded guilty in 1943, an obligation was created which he owed to the state. The only way this obligation could be fulfilled was by serving the sentence or by release by the proper authorities. In 1950, by violating his parole, petitioner achieved the status of an escaped prisoner, and his sentence ceased to run. King v. Maxwell, Warden, 173 Ohio St. 536, 184 N.E.2d 380; and Bush v. Maxwell, Warden, 175 Ohio St. 207, 192 N.E.2d 774. At the time of the violation of his parole, petitioner still owed a part of his debt to the state under the 1943 conviction. He was not paying this debt while he was a parole violator. The only way this debt could be satisfied was by serving the sentence, unless the obligation was remitted by some legal authority. Petitioner's time of imprisonment was not reduced by the time he was at large as a parole violator.

Petitioner urges that the failure of the state to act constituted a waiver. There is no evidence that the state knew where petitioner was during the years of 1950 to 1960, but, even if it did, no rights were lost by the state in failing to act to return petitioner to the penitentiary. The burden was on petitioner to serve his sentence. If he had been concerned about the matter he could have surrendered himself to the authorities. There was no duty on the state to pursue petitioner and return him to Ohio.

In other words, where a paroled convict violates his parole, there is no affirmative duty upon the state to place detainers on him or pursue him so as to return him to custody, and the state by its inaction creates neither an estoppel nor a waiver of its right to exact the penalty imposed under the conviction when it once again takes him into custody. People ex rel. Barrett, Atty. Genl. v. Dixon, Judge, 387 Ill. 420, 56 N.E.2d 816; In re McBride, 115 Cal.App.2d 538, 254 P.2d 117; and United States ex rel. Palmer v. Ragen, 7 Cir., 159 F.2d 356.

Next, petitioner contends that he did not file a written waiver of jury, and that, therefore, his conviction was void. It is well established that failure to file such a waiver does not infringe the constitutional rights of one who enters a plea of guilty to the indictment. Norton v. Green, Supt., 173 Ohio St. 531, 184 N.E.2d 401; Vertz v. Sacks, Warden, 173 Ohio St. 459, 183 N.E.2d 924; Rodriguez v. Sacks, Warden, ...