Guerrieri v. Maxwell

• Decision Date: 05 December 1962
• Docket Number: No. 37600,37600
• Citation: 174 Ohio St. 40,186 N.E.2d 614
• Parties: , 21 O.O.2d 291 GUERRIERI v. MAXWELL, Warden.
• Court: Ohio Supreme Court

Page 40

174 Ohio St. 40

186 N.E.2d 614, 21 O.O.2d 291

GUERRIERI v. MAXWELL, Warden.

No. 37600.

Supreme Court of Ohio.

Dec. 5, 1962.

Benjamin Thomas Guerrieri in pro. per.

Mark McElroy, Atty. Gen., and John J. Connors, Jr., Columbus, for respondent.

PER CURIAM.

Petitioner makes no attack on the validity of his original conviction in Ohio. In essence it is his contention that Ohio, by allowing the federal government to incarcerate him in a federal penitentiary for the violation of a federal statute while he was under a prior sentence by the state of Ohio, relinquished or waived its right to carry into execution the sentence previously imposed upon him by the Ohio court.

Petitioner bases his contention on the rule stated, as follows, in Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607:

'The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person of property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose.'

As a statement of a general abstract rule of law this proposition is sound. It does not, however, dispose of the issue before us, and an examination of the Ponzi case itself shows the limitations thereof, as the court said at page 260, 42 S.Ct. page 310:

'One accused of crime has a right to a full and fair trial according to the law of the government whose sovereignty he is alleged to have offended, but he has no more than that. He should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of such machinery prevents his having a fair trial. He may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it. In re Andrews (D.C.) [2 Cir.] 236 Fed. 300; United States v. Marrin, (D.C.) [3 Cir.] 277 Fed. 314. Such a waiver is a matter that addresses itself solely to the discretion of the sovereignty making it and of its representatives with power to grant it.

'One accused of crime, of course, can not be in two places at the same time. He is entitled to be present at every stage of the trial of himself in each jurisdiction with full opportunity for defense. Frank v. Mangum, 237 U.S. 309, 341, 35 Sup.Ct. 582, 59 L.Ed. 969; Lewis v. United States, 146 U.S. 370, 13 Sup.Ct. 136, 36 L.Ed. 1011. If that is accorded him, he cannot complain. The fact that he may have committed two crimes gives him no immuntiy from prosecution of either.'

Thus, although it is true that a sovereign having prior jurisdiction over one who has violated its laws has the right, if it chooses to exercise it, of retaining such person until it has completely exhausted its jurisdiction over him, including the payment of the penalty for the offense, such sovereign also has the power to surrender such person to another sovereign to satisfy a criminal liability owing to such other sovereign. This is well stated, as follows, in Stamphill v. United States, 10 Cir., 135 F.2d 177, 178:

'But a sovereign having the prior and exclusive jurisdiction and custody of a person for violation of its penal laws may voluntarily surrender him to the other for the purpose of trial on a criminal charge, and in such circumstances the question of jurisdiction and custody essentially one of comity between the two sovereigns, not a personal right of the individual.'

In Strand, v. Schmittroth, 9 Cir., 251 F.2d 590, 595, the court said:

'It is well established that a sovereign, which has the paramount right to proceed with trial and sentence and which at the same time has custody of a defendant, may yield up the body to another sovereign and consent to trial of the defendant upon a subsequent charge by the latter and, of course, upon a prior charge. Likewise, where the defendant in a proceeding in a tribunal is a parolee, probationer or on bail from another jurisdiction and court, the sovereign in whose court the right to proceed is lodged by possession of the body or otherwise may nevertheless yield to the officers of another sovereign.'

See, also, Ramsey v. United States, 9 Cir., 248 F.2d 532.

This voluntary temporary relinquishment is a matter of comity between the sovereigns and is not a quesion of the consent of the accused. For, as is said in Strand v. Schmittroth, supra, 594, 595 of 251 F.2d:

'Consent may play such a role in a contest over the right to prosecute and punish an alleged offender that a meticulous analysis of this element is required.

'The consent of the accused is of no consequence. His acquiescence, approval or resistance cannot affect the choice of the forum. His consent while in physical custody of another sovereign cannot confer jurisdiction upon any tribunal. Refusal upon his part to participate in the proceedings against him in any court is of no avail. It is assumed that he is unwilling to be prosecuted anywhere. Physical presence of defendant at all criminal proceedings is an almost universal requirement in American courts. Such presence is obtained and generally assured by arrest and confinement, which is absolute, or by release on bail, which does not guarantee the physical presence, but which may be revoked in order to secure physical presence.

'The accused is the unwilling actor. All the proceedings are without his consent and over his protest. Where two sovereigns each claim the right to proceed against him, the respective officers dispose of the matter without consulting him. He has no right or privilege to be consulted or heard. In practice, he is not consulted, since it is properly assumed that the sovereigns only are concerned with disposition of the criminal charges.'

Therefore, where one has placed himself in the position of being wanted at the same time by two different sovereigns for the violation of penal statutes of both, it is a matter for the sovereigns to determine which shall first exact punishment from the offender, and not the offender. Under such circumstances it is the interested sovereigns who make the determination and the offender cannot complain of the order of his trials or punishment for such offenses. Zahn v. Kipp, 7 Cir., 218 F.2d 898; Gunton v. Squier, 9 Cir., 185 F.2d 470; Young v. Edmondson, Warden, 177 Kan. 582, 280 P.2d 571; Nolan v. United States, 8 Cir., 163 F.2d 768; Powell v. Stanford, Warden, 156 F.2d 355; Stamphill v. Johnston, 136 F.2d 291; and People v. Stoliker, 13 Cal.Rptr. 437.

As shown...