Eisentrager v. State Bd. of Parole Com'rs

• Decision Date: 08 December 1969
• Docket Number: No. 5852,5852
• Citation: Eisentrager v. State Bd. of Parole Com'rs, 462 P.2d 40, 85 Nev. 672 (Nev. 1969)
• Parties: Thomas A. EISENTRAGER, Petitioner, v. STATE BOARD OF PAROLE COMMISSIONERS, Respondent.
• Court: Nevada Supreme Court

Page 40

462 P.2d 40

85 Nev. 672

Thomas A. EISENTRAGER, Petitioner, v.STATE BOARD OF PAROLE COMMISSIONERS, Respondent.

No. 5852.

Supreme Court of Nevada.

Dec. 8, 1969.

Manoukian & Manoukian, Carson City, for petitioner.

Harvey Dickerson, Atty. Gen., and Robert A. Groves, Deputy Atty. Gen., Carson City, for respondent.

OPINION

BATJER, Justice.

The petitioner is incarcerated in the Nevada state prison for a term of not less than 10 years nor more than life after having been found guilty by a jury of the crime of murder in the second degree.He has recently been advised by the authorities that he is ineligible for parole because NRS 213.110¹ denies parole to anyone who has been previously convicted of more than three felonies.

In support of his petition he contends that the State Board of Parole Commissioners exceeded its jurisdiction when they denied him the opportunity to apply for parole, and because of this decision in excess of their jurisdiction his constitutional rights to due process have been violated, causing him to suffer enhanced punishment.

Without so much as a hint that one or more of his prior felony convictions was invalid, or an allegation that they are void on their face, or even a claim that the parole commissioners had failed or refused to determined their validity, the petitioner attempts to invoke the rule of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799(1963), which established that the right to counsel guaranteed by the Sixth Amendment was applicable to the states by virtue of the Fourteenth Amendment of the United States Constitution, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one.He further insists that Gideon is applicable to this case through Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319(1967), where the United States Supreme Court said: 'To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (SeeGreer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526) is to erode the principle of that case.Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.'

We reject all of the petitioner's contentions.

In Pinana v. State, 76 Nev. 274, 352 P.2d 824(1960), this court said: 'The subject of parole in this state is within the legislative authority given by the constitution to the legislature.Art. 4, Sec. 1, Nevada Constitution.Parole is not a constitutional right; it is a right bestowed by legislative grace.Zink v. Lear, 28 N.J.Super. 515, 101 A.2d 72.'

The legislature has the exclusive power to determine the terms of and conditions of parole, and in enacting NRS 213.110 it was merely exercising its constitutional power.

At the outset several questions became apparent.What was the intent of the legislature when NRS 213.110 and its predecessors were enacted?Whom did the legislature have in mind when it used the words 'any prisoner * * * who has not previously been more than three times convicted of a felony * * *?'Did they have in mind only a recidivist who had been judicially adjudged a habitual criminal, or did they wish to include those prisoners who came within that class but have not been so adjudged?

From March 25, 1929 until 1933, no prisoner who had been previously convicted of a felony and had served a term in a penal institution was eligible to be considered for parole.In 1933 the predecessor of NRS 213.110 was amended so that the prisoners ineligible for parole would be those who had more than three previous...