Hartley v. State

• Decision Date: 17 January 1969
• Citation: 249 A.2d 38
• Parties: John W. HARTLEY v. STATE of Maine and Allan L. Robbins, Warden, Maine State Prison.
• Court: Maine Supreme Court

Page 38

249 A.2d 38

John W. HARTLEY v. STATE of Maine and Allan L. Robbins, Warden, Maine State Prison.

Supreme Judicial Court of Maine.

Jan. 17, 1969.

A. MacNichol, Portland, for plaintiff.

Garth K. Chandler, Asst. Atty. Gen., Augusta, for defendants.

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

TAPLEY, Justice.

On appeal. This is an appeal by the State from the findings of a single Justice on a petition for post-conviction relief filed by the petitioner, John W. Hartley. The factual aspects of the case as presented to the presiding Justice are substantially as follows: On May 12, 1961 the petitioner, upon a plea of guilty to a charge of breaking and entering with intent to commit larceny, was sentenced to the Men's Reformatory, which sentence was suspended and he was put upon probation for two years. This probation was revoked on February 20, 1962, whereupon the petitioner was committed to the Men's Reformatory for breach of conditions of probation. This sentence, if served in full, would terminate on February 19, 1965. On November 24, 1962 the petitioner was again paroled from the Reformatory and later a parole violator's warrant was issued, the petitioner apprehended and sometime in March of 1963 he was returned to the Reformatory. Again on July 6, 1963 he was paroled, at which time he 'owed' approximately 1 year, 7 months and 14 days on his Reformatory sentence. The next activity of a criminal nature on the part of this petitioner occurred on November 11, 1963 when he was arrested and charged with breaking and entering with intent to commit larceny. The last offense was committed in Cumberland County while he was on parole. The events chronologically show that on November 13, 1963 a parole violator's warrant was issued and on the same day the Warden of the State Prison was notified that the petitioner was a parole violator. The petitioner appeared in the Superior Court, within and for the County of Cumberland, on December 20, 1963, having waived the indictment and pleaded guilty to an information charging him with breaking and entering with intent to commit larceny, whereupon he was sentenced to the State Prison for a term of not less than 2 years nor more than 4 years. He was committed to the State Prison on December 23, 1963 in execution of the sentence. At the time he was sentenced in the Superior Court to State Prison the sentencing Justice had knowledge of the fact that the petitioner 'owed' time to the Men's Reformatory. Following his commitment to the State Prison the Parole Board met at the prison, revoked his parole on the Reformatory sentence and remanded him to State Prison to execute the unexpired portion of the Reformatory sentence.

The issues are: (1) Does a sentence imposed for a crime committed while on parole run consecutively to the sentence upon which the individual was paroled unless the Court at the time of imposing the second sentence indicated that the sentences were to run consecutively?

(2) Must a parole violator's arrest and detention warrant issue and be executed by service on a parolee before the parolee is obligated to serve the unexpired portion of the sentence on which he was paroled when he commits a crime while on parole and receives a sentence therefor?

(3) Dose non-action of the Parole Board in not serving the warrant have the effect of terminating the unexpired sentence?

One of the main points of counsel's argument is that where the Parole Board allegedly failed to comply with the statutory requirements for revocation of parole the unexpired portion of the first sentence is executed concurrently with the new sentence and thus is terminated as a matter of law within the meaning of the provisions of 34 M.R.S.A., Sec. 1676, which reads:

'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.' (Emphasis supplied)

Section 1676 provides the sentences shall not run concurrently 'unless the first sentence is otherwise terminated by the board.' This presents the question: Did the Board under the circumstances of this case terminate the first sentence?

There is a distinction between the legal status of one who stands convicted of crime and the same person who later becomes a parolee from the institution of his confinement to which he was sentenced. When he elects to accept parole and thus obtains the liberty which it confers he must do so subject to the conditions upon which the parole is granted. He agrees to the conditions imposed and should understand that a breach of the conditions will be the cause of revocation and resulting confinement for the purpose of serving the balance of his sentence. It is not a matter of right but one of grace and privilege accorded the parolee to be at liberty subject only to the conditions of his parole which gives him the opportunity of rehabilitation. It is apparent that the Legislature did not intend that a parolee who has been granted the privilege of parole and while on parole committed a crime against society should use this privilege to serve the balance of his term concurrently with the new sentence unless the Parole Board in its discretion 'terminated' the sentence upon which he was paroled.

Counsel for the petitioner argues that there was error in the procedures taken, or failed to have been taken, by the Parole Board and therefore the sentences must be served concurrently.

In Libby, Jr. v. State of Maine, et al, 161 Me. 317, 211 A.2d 586, the petitioner was released on parole in December, 1962. On September 12, 1964 he was held at the police station in Portland charged with violation of parole arising from the facts which later resulted in his conviction for taking an automobile without consent of the owner. He subsequently pleaded guilty to the offense, was sentenced to 30 days in the County Jail and committed in execution of sentence. On September 14, 1964 a parole violation arrest warrant was issued and the petitioner was arrested by a parole officer. After serving the sentence of 30 days he was again arrested by a parole officer and taken to State Prison and, after hearing, his parole was revoked and he was remanded to the State Prison. The petitioner's contention in Libby, Jr., supra, was that service of the 30 day jail sentence operated as a waiver of any obligation to serve the remainder of the State Prison sentence and, in addition, was an implied pardon or discharge therefrom. The Court said, on page 319, 211 A.2d on page 587:

'We find no authority whatsoever in the parole officer or the warden which would permit such a startling result.'

In Avellino v. United States of America, 2 Cir., 330 F.2d 490 at 491, the Court said:

'The Parole Board waited until all the criminal charges filed against Avellino and arising from the September 24, 1960 accident were finally adjudicated. This is in accordance with the practice of the Parole Board where criminal charges are pending against the parolee in a state court. While the Parole Board is not bound by the outcome of the state court proceeding, Hogan v. Zerbst, 101 F.2d 634 (5 Cir. 1939), it would seem to be a sensible deference to the state's prosecution of the charges to await the outcome of those proceedings. This enables the state prosecution to proceed with a minimum of interference and delay. Thus the Parole Board has the benefit of further information which may derive from the state court proceedings. Moreover, the Parole Board preserves its power to require that the state sentence and the remainder of the federal sentence be served consecutively.'

This Court in Lewis v. Robbins, 150 Me. 121, 104 A.2d 838, speaks of the reasons for and the purposes of the statute requiring the sentence of a parolee convicted of a crime while on parole to run consecutively to the unexpired term of the sentence he was serving while on parole. On page 123, 104 A.2d on page 893 the Court said:

'He was given his freedom conditionally by the State and his liberty from confinement was enjoyed by virtue and because of the permission given him to go at large with the hope he would mend his ways and become a law abiding citizen. The violation of his parole and the commission of another crime did not affect his status in this respect. He was, in fact, free until apprehended on the Warden's warrant. To hold otherwise would make it possible for a parolee who has violated the terms of his parole, to avoid service of the maximum sentence by committing another crime before he was taken in custody on the Warden's warrant if, as here, the justice imposing the new sentence failed to specify that execution thereof was to commence upon expiration of the first sentence. The contention of the petitioner, if true, would violate the purpose and intent of Section 23 with respect to sentence. The purpose of Section 23 is to prevent simultaneous execution of the first and subsequent sentence and to make it mandatory that the second sentence begin at the expiration of the first sentence when the second sentence is imposed upon a prisoner for a crime committed by him while enlarged upon parole. The contention of the petitioner is that for crimes committed by a prisoner who has been enlarged on parole simultaneous service of the old and new sentences is possible if the parole has been revoked, but if not revoked consecutive service of the sentences is mandatory. An interpretation that would permit this result would not only be absurd but it would violate the very purpose and spirit of the statute. No such result, in our opinion, was intended by the Legislature, and there can be no such interpretation of the two sections involved here.'

In citing this case we do so with the knowledge that at the time it was written the statute did not read:

'unless the first sentence is otherwise...