Ex parte Macejka

• Decision Date: 13 November 1950
• Citation: 76 A.2d 843,10 N.J.Super. 393
• Parties: Ex parte MACEJKA.
• Court: New Jersey County Court

Page 393

10 N.J.Super. 393

76 A.2d 843

Ex parte MACEJKA.

Mercer County Court, Law Division, New Jersey.

Nov. 13, 1950.

Earl T. Milsop, of Paterson, for the petitioner.

Theodore D. Parsons, Attorney General of New Jersey, by Eugene T. Urbaniak, Deputy Attorney General, for the State.

HUGHES, J.C.C.

On the representation that he is illegally confined in the New Jersey State Prison, petitioner was granted the writ of habeas corpus under the authority of R.S. 2:82--1, et seq., N.J.S.A. The petition for the writ, the return thereto and stipulations entered into at the hearing on the writ, establish that on May 1, 1936, petitioner, having been sentenced by a court of jurisdiction in the County of Bergen to serve not less than 12 nor more than 15 years in the State Prison on conviction of the crime of robbery, was received in the prison and entered upon the service of such sentence; that by action of the Board of Managers of such prison taken under the authority of R.S. 30:4--106.1, N.J.S.A. (repealed P.L. 1948, c. 84, effective May 28, 1948), petitioner was paroled on such sentence on September 13, 1944; that on the date of such parole there remained unserved against such sentence a net total of two years, seven months and four days, after application of all of the uniform commutation time credits to which he was then entitled on the maximum of such sentence (R.S. 30:4--140, N.J.S.A.); that one of the conditions of such parole, accepted by petitioner on the granting thereof, was the following: 'If you are returned to prison by revocation of parole, the time between your release and your return to prison, will not be taken into consideration as a part of your sentence, and you will be required to serve the maximum sentence that was imposed upon you.'

It further appeared that petitioner, on May 7, 1945, during the time he was at large and prior to expiration of the maximum term of the parole (R.S. 30:4-106.1, N.J.S.A., repealed P.L.1948, c. 84), was convicted in Morris County of another crime and sentenced to serve not less than three nor more than seven years in the State Prison; and that on June 1, 1945, also within the maximum term of such parole, he was sentenced in Essex County on conviction of another offense, to serve not less than three nor more than seven years in the State Prison, such term being ordered to run concurrently (but not retroactively to any extent) with the Morris County sentence referred to; that, accordingly, and in legal effect, the petitioner commenced service of such concurrent terms of June 1, 1945; that as a result of such convictions of crime within the maximum term of his parole, such parole was revoked by said Board of Managers on June 12, 1945.

The return to the writ filed by the State establishes that upon expiration of the concurrent Essex County and Morris County sentences, the petitioner was 'reverted' and continued in confinement to serve the unexpired portion of the Bergen County sentence on which he had been paroled, and such is advanced as the justification for his present detention.

On the basis of the above, petitioner makes three contentions, which may be summarized as follows:

(1) That upon his receipt in prison on the sentences imposed upon him in 1945, he was classified as a multiple offender (R.S. 2:103--9, N.J.S.A., amended P.L. 1950, c. 315) and was not permitted to earn commutation time (R.S. 30:4--140, N.J.S.A., supra) on his second and third sentences, and was required to serve such commutation time earned by him on his first sentence.

By reason of the amendment of R.S. 2: 103--9, N.J.S.A., and existing decisions on the subject of these sanctions against multiple offenders, not charged and convicted as such in the trial court. In re Breslin, 9 N.J.Super. 356, 74 A.2d 373, (Mercer County Court, Law Division, 1950); In re Hargraves, unreported (Mercer County Court, Law Division, 1950); In re Morse, unreported (Mercer County Court, Law Division, 1950) this point is now academic; all such time credits have been restored to the petitioner and this ground for relief is withdrawn. Upon the adjustment of his prison records to account for all such time so restored, and it appearing that no parole intervened as to these latter sentences, there is yielded the adjusted date on which petitioner completed service of the maximum terms of the concurrent sentences imposed upon him, i.e., February 23, 1950, which also marks the date of his 'reverting' to complete service of the time remaining to be served on the maximum of the Bergen County sentence, on which he had been paroled and which parole was revoked, as stated.

(2) The next ground urged by petitioner involves a point on which there is some varying authority in the jurisdictions of this country. It has been noted that when petitioner was paroled on September 13, 1944, there remained unserved against the maximum term of his sentence a total of more than two years. The sanction to be imposed upon any revocation of such parole due to subsequent conviction of crime was that such violator would be required to serve the maximum term of the sentence originally imposed upon him. Petitioner contends, however, that since the revocation was brought about by subsequent conviction of crime, and since he was for such crimes sentenced to be imprisoned for minimum-maximum terms, and since the latter sentences did not specify and they would run consecutively to the unexpired term that he was bound to serve as a parole violator, that such terms of imprisonment ran concurrently with such unexpired term and, hence, that by his service of the latter sentences, on which he ws confined from June 1, 1945 to February 23, 1950, he served during the same interval the unexpired portion of the original sentence on which he had been paroled. The petitioner cites, Inter alia, the case of Wright v. Youell, 160 Va. 925, 168 S.E. 339 (Sup.Ct. of App.1933), 24 C.J.S., Criminal Law, § 1996(d), as authority for the view that upon revocation of parole upon subsequent conviction of crime, followed by imprisonment for such crime, the time due on the sentence from which the violator had been paroled runs concurrently with the imprisonment on the current sentence, where the second sentence fails to specify that it shall run consecutively thereto. The Wright case must be distinguished because there was there involved a conditional pardon by the sovereignty, having as its principal condition that if the grantee were again to be convicted of crime, the pardon would be null and void. Upon the voiding of the pardon for such cause, the grantee being in custody, the unserved portion of the sentence on which he had been pardoned commenced to run, and in the absence of a direction to the contrary in the second sentence, that, too, commenced then to run. The petitioner likens this authority to the situation which existed in New Jersey in 1945, at which time there was admittedly no statute existing requiring him to serve the two sentences consecutively. It may be noted parenthetically that presently P.L. 1948, c. 84, R.S. 30:4--123.27, N.J.S.A., specifically denies to a parolee the right to serve a sentence for a subsequent crime and the penalty for parole violation concurrently. It is contended on behalf of petitioner that such statute is not in any sense declarative of existing law.

It must be noted, however, that petitioner had accepted as a condition of his parole the provision above set forth, which, in case of revocation, would require him to serve the remaining maximum term of his sentence, and stipulated that '* * * the time between your release and your return to prison will not be taken into consideration as a part of your sentence * * *.' The paroling authority was authorized to impose this condition (R.S. 30:4--108, N.J.S.A.) and such condition was undoubtedly valid and...