Fredericks, Application of

• Jurisdiction: Oregon
• Parties: In the Matter of the Application of George FREDERICKS for a Writ of Habeas Corpus. George FREDERICKS, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent. *
• Citation: Fredericks, Application of, 308 P.2d 613, 209 Or. 683 (Or. 1957)
• Court: Oregon Supreme Court
• Decision Date: 13 March 1957

Page 613

308 P.2d 613

209 Or. 683

In the Matter of the Application of George FREDERICKS for a Writ of Habeas Corpus George FREDERICKS, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent. ^*

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 23, 1957.

Decided March 13, 1957.

Merlin Estep, Jr., Salem, argued the cause for appellant. On the brief were Williams & Skopil, and Hewitt, Estep & Sorensen, Salem.

Peter S. Herman, Asst. Atty. Gen., argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.

McALLISTER, Justice.

This is an appeal by plaintiff, George Fredericks, from an order of the circuit court of Marion county dismissing a habeas corpus proceeding brought by plaintiff to obtain his release from the state penitentiary. On November 29, 1945, plaintiff entered the state penitentiary to serve a sentence of 15 years for the crime of assault with intent to rob and remained therein until he was released on November 29, 1955, under the following circumstances.

On November 1, 1955, the defendant, Clarence T. Gladden, warden of the penitentiary, wrote a letter to Governor Paul Patterson, the material portions of which read as follows:

'State of Oregon

'Oregon State Penitentiary

'2605 State Street

'Salem, Oregon

'November, 1, 1955

'Hon. Paul Patterson

'Governor

'State of Oregon

'Salem, Oregon

'Dear Governor Patterson:

'In compliance with the Provisions of Chapter 505 Oregon Laws 1955, (ORS 421.120 Revised), I hereby certify that the inmates listed below are entitled to 'Good Time' credits as indicated; scheduled for release month of November, 1955:

'Name 'Fredericks, George

Number 18156

Sentence 15 years

Statutory Good Time 4 yrs. 11 mos. 29 days

'Respectfully submitted,

's/ C. T. Gladden

'C. T. Gladden

'Warden

'Approved:

's/ Paul Patterson

'Paul Patterson

'Governor.'

The letter contained other columns headed 'Industrial Good Time,' 'Annex Good Time,' 'Forest Camp Good Time,' and 'Parole Good Time Restored' but since plaintiff was not given good time credits in any of those columns, they have been omitted from the copy of the letter set out above.

Pursuant to the foregoing letter and the approval thereof by the governor, the plaintiff was discharged from the penitentiary on November 29, 1955, and remained at liberty until May 4, 1956, when he was taken into custody by employees of the penitentiary acting under directions of the warden and returned to the penitentiary where plaintiff has since been confined. The warden concedes that plaintiff was taken into custody and reimprisoned without any authority other than the original judgment of conviction.

The reimprisonment of plaintiff resulted from a change in the construction placed by the warden upon ORS 421.120, the material portion of which, reads as follows:

'(1) Each prisoner now or hereafter confined, in execution of the judgment of sentence upon any conviction, in the penitentiary, for any term other than life, and whose record of conduct shows that he faithfully has observed the rules of the institution, and where industry and general reformation are certified to the Governor by the warden of the penitentiary, shall be entitled, upon the order of the Governor, to a deduction from the term of his sentence to be computed as follows:

* * *

* * *

'(b) Upon a sentence of more than one year, 10 days for each month of actual service of such sentence in the penitentiary. * * *.'

It appears that paragraph (b) as quoted above had been erroneously construed by the prison officials for a considerable period to authorize the deduction of one-third of the total sentence imposed. In accord with such construction, a good time deduction of one-third of his 15 year sentence was granted to plaintiff and he was released after serving 10 years.

Beginning about April, 1956, a new and correct administrative interpretation of the above provision was adopted under which each prisoner entitled thereto was granted 10 days off the end of his sentence for each complete month of actual service in the penitentiary, which resulted in a maximum deduction of approximately one-fourth of the total sentence. Under the new interpretation plaintiff would have to serve 135 months in order to earn a good time credit of 45 months, which credit added to the time served would total 180 months, or 15 years. Since the plaintiff had been released after serving only 120 months or approximately 15 months less than required under the above provision as properly interpreted, the warden caused plaintiff to be taken into custody to complete the service of his sentence.

On May 7, 1956, immediately after his reimprisonment, plaintiff filed in the circuit court for Marion county a petition for a writ of habeas corpus which was issued. After a hearing the court entered an order dismissing the proceedings and remanding plaintiff to the custody of the warden, from which order this appeal is taken.

By his only assignment of error plaintiff contends that he is now unlawfully imprisoned because he was unconditionally discharged from the penitentiary on November 29, 1955, upon the order of the governor based upon the certification of the warden that plaintiff was entitled to be released; that such certification, order and release were all in accord with regular and well established procedures and that plaintiff's discharge did not result from misrepresentation of any kind.

In his brief plaintiff argues in effect, first, that his discharge was pursuant to the constitutional power of the governor to grant pardons and commutations, second, that such order of discharge was irrevocable, and third, if such order of discharge was revocable, it could only be revoked by the governor or by a court of competent jurisdiction.

It is obvious that if plaintiff was released on November 29, 1955, pursuant to an unconditional pardon or commutation granted by the governor acting under the authority vested in the chief executive by the constitution, the subsequent arrest and reimprisonment of the plaintiff by the warden was unlawful. It is therefore necessary for us to determine whether the plaintiff was released from the penitentiary by an act of the governor performed under the authority vested in him by the constitution or by an act performed solely under the authority of ORS 421.120.

The Oregon Constitution, Art. V, § 14, insofar as material, provides as follows:

'He [the governor] shall have power to grant reprieves, commutations, and pardons, after conviction, for all offences (sic) except treason, subject to such regulations as may be provided by law. * * *'

We find no statute presently in force which purports to regulate the power to grant reprieves, commutations and pardons vested in the governor by the constitution. Although it has been argued that ORS 421.120 and 143.040, by implication, restrict or limit this power of the governor, we do not agree. We believe that if the legislature should deem it advisable to regulate the constitutional pardoning power of the governor, it will do so in clear, direct language and not attempt such regulation by implication.

From our examination of the record, we agree with the trial court that plaintiff was not released as a result of any act performed by the governor pursuant to his constitutional authority. The above letter addressed to the governor by the warden, clearly states that in compliance with the provisions of ORS 421.120, the warden is certifying that the designated prisoners are entitled to the good time credits enumerated therein and are scheduled for release during the month of November, 1955. By his signature, the governor merely authorized the granting of the good time credits to which each listed prisoner was entitled under the provisions of ORS 421.120, as certified by the warden. We find no merit in the argument that in affixing his signature to the letter, the governor was ignoring the provisions of ORS 421.120, and granting an unconditional pardon or commutation to each of the 32 prisoners listed. Although a pardon may be granted or a sentence commuted with little formality, it is necessary that the executive use some appropriate language indicating an intention to grant such a pardon or commutation. In the case at bar, the governor clearly intended only to approve the release of those prisoners whose good time credits, as certified by the warden pursuant to ORS 421.120, entitled them to release during November, 1955.

In order to determine whether the warden was authorized by ORS 421.120 to arrest and reimprison plaintiff, it will be helpful to consider the legislative history of said section. Prior to 1937, good time credits were granted to prisoners in the penitentiary under the provisions of § 13-1906, Oregon Code 1930, which had originally been enacted as a part of ch. 187, Oregon Laws 1905, and the first sentence of which read as follows:

'Any person sentenced to serve an indeterminate sentence in the penitentiary may be paroled by the governor upon his own motion, or upon the recommendation of the parole board, in accordance with the provisions of this section set forth, to wit: * * *.' (Italics supplied.)

In Fehl v. Martin, 155 Or. 455, 64 P.2d 631, this court pointed out that said section was not actually a good conduct statute but pertained to the granting of paroles and used the following language:

'It seems obvious from a mere reading of the section, that that section was intended to apply to the granting of paroles and was not intended by the Legislature, where no parole was granted, to shorten the term for which a prisoner had been sentenced. That the Legislature had the power to provide that, because of the good behavior of a prisoner in the penitentiary, his sentence should be shortened and to determine to what extent it should be shortened is not questioned. If such had been the intention of the Legislature, it is reasonable to infer that the...