Green v. State

• Decision Date: 20 August 1968
• Citation: 245 A.2d 147
• Parties: Ansel GREEN v. STATE of Maine et al.
• Court: Maine Supreme Court

Page 147

245 A.2d 147

Ansel GREEN v. STATE of Maine et al.

Supreme Judicial Court of Maine.

Aug 20, 1968.

A. MacNichol, Portland, for Ansel Green.

Garth K. Chandler, Asst. Atty. Gen., Augusta, for the State.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE, and WEATHERBEE, JJ.

DUFRESNE, Justice.

On report. The following facts are admitted. At the May term 1949 of the Superior Court in Knox County in this State, the petitioner (Green) was convicted of larceny of an automobile valued at $200.00, a crime punishable by imprisonment in the State Prison, and in addition thereto was charged and adjudged to having been before convicted of the crime of robbery and sentenced thereon by a court of this State to Maine State Prison. By reason of the 'habitual criminal' statute, so-called, (R.S.1954, c. 149, § 3, now as amended 15 M.R.S.A. § 1742), he was sentenced as a recidivist upon the larceny conviction to serve not less then 12 nor more than 24 years in the Maine State Prison. Received at that institution on May 12, 1949 under the above sentence, Green was released on June 24, 1965 when paroled by the State Probation and Parole Board, said parole to continue in effect until February 3, 1972 or until revocation thereof or discharge in accordance with law.

While on parole Green committed the offense of receiving and aiding in concealing stolen goods; upon his plea of guilty entered December 22, 1966 he was sentenced to imprisonment in Maine State Prison, to wit, 'into the custody of the warden of said state prison who shall cause the defendant to be punished by imprisonment, at hard labor, for not less than two (2) years and not more than four (4) years within the precincts of said state prison.' Actual commitment to the State Prison followed on December 23, 1966.

Upon Green's return to the prison, he was deemed by the prison authorities to be serving his first sentence of not less than 12 nor more than 24 years, service of the 2nd sentence to await the termination of the first sentence; this official construction was mandatory under 34 M.R.S.A § 1676, which requires that 'Any parolee who commits an offense while on parole who is sentenced to the State Prison shall serve the 2nd sentence beginning on the date of termination of the first sentence, unless the first sentence is otherwise terminated by the board.' Lewis v. Robbins, 1954, 150 Me. 121, 104 A.2d 838.

Green's first sentence was voided by this Court on January 23, 1968. See, Green v. State, Me., 237 A.2d 409. By reason thereof, he was ordered discharged from the first sentence on January 25, 1968, after having served thereon 18 years, 8 months and 14 days. The maximum legal penalty for the 1949 larceny charge to which Green could have been sentenced at the time was 5 years. (R.S.1954, c. 132, § 1).

After the judicial voidance of the first sentence, the prison authorities in their application of 34 M.R.S.A. § 1676 then ruled and now urge that the date of the beginning of service of the 2nd sentence was January 25, 1968, when Green's first sentence was terminated by the Court's official order of discharge. To test the legality of such official interpretation of 34 M.R.S.A. § 1676 as it affects Green's present term of incarceration under the 2nd sentence is the object of the instant post-conviction habeas corpus proceeding.

The State's counsel finds support for the warden's ruling in Smith v. Lovell, 1950, 146 Me. 63, 77 A.2d 575. In Smith, our statute making it mandatory that a 2nd sentence upon conviction for an offense committed while on parole be served consecutively, that is, beginning on the date of termination of the first sentence, was not involved, but there did exist an analogous situation in that the 2nd sentence in Smith by its very terms was ordered to begin at the expiration of a previous 1st sentence. The principle would be the same whether the order of service of multiple sentences be directed by court pronouncement or statutory mandate.

Initially, Green sought relief from the 2nd sentence on the theory that the nullification of the 1st sentence showed up an error of fact not of record unknown to the accused and the sentencing court at the time of imposition of the 2nd sentence, which if known would have been taken into consideration in passing judgment. It is alleged that Green's service of more than 13 years upon a prior illegal sentence would undoubtedly have been given such credit by the sentencing judge if then known that no further service would have been exacted for the second offense. Whether accumulation of credits as such for time served under an illegal sentence may confer statutory relief in post-conviction habeas corpus, be such credits a matter of right or grace, we need not decide and we intimate no opinion thereon as that issue has been expressly withdrawn at argument.

The question with which we are concerned is as follows: When the first of consecutive sentences imposed at separate times is set aside for error, does the later outstanding sentence commence as of the date of its imposition, or as of the date of the invalidation of the first sentence?

As heretofore noted, Smith v. Lovell decided that when the first of consecutive sentences is voidable only and not void ab initio, it remains in full force and effect until vacated by a court of competent jurisdiction, and that the time served on the erroneous sentence cannot be credited to the outstanding valid sentence when the erroneous sentence is subsequently vacated, since the second sentence commences to run only from the time of the termination of the previous invalid sentence by judicial order vacating it.

In Smith v. Lovell, the prisoner, as Green does in the instant case, complained that he suffered imprisonment under the first sentence unjustifiably, and that the imprisonment which he suffered under that sentence, at least from the time he was incarcerated after the imposition of the valid and subsisting sentence, should be credited upon the latter sentence even though it was not to take effect until the erroneous sentence was terminated. The underlying rationale of the Court based upon the formalistic difference between void and voidable sentences was justified then upon the doctrine of waiver. The Court said at page 71, of volume 146 of the Maine reports, at page 579 of 77 A.2d: 'The petitioner did none of these things. By his inaction he waived all of these provisions of the law which were available to him and which were designed and intended as a protection of his rights.' On page 72, 77 A.2d on page 580: 'If the plaintiff suffered imprisonment under the erroneous sentence it is because he did not avail himself of the provisions of law which existed for his benefit.' The doctrine of waiver...