Hendrixson v. Lash

• Decision Date: 31 May 1972
• Docket Number: No. PS192,PS192
• Parties: Elvin Eugene HENDRIXSON, Appellant, v. Russell E. LASH, Appellee.
• Court: Indiana Supreme Court

Page 792

282 N.E.2d 792

258 Ind. 550

Elvin Eugene HENDRIXSON, Appellant, v. Russell E. LASH, Appellee.

No. PS192.

Supreme Court of Indiana.

May 31, 1972.

Rehearing Denied July 11, 1972.

Elvin Eugene Henderson, pro se.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

Petitioner, proceeding pro se, filed a 'writ of habeas corpus' with the LaPorte County Circuit Court, the county of his confinement. That court denied relief due to its finding that it was without jurisdiction to entertain the petition. No motion to correct errors appears in the record. The case came to this court on appeal from that decision. In its appellate brief, the State of Indiana chose to respond to the merits of petitioner's argument instead of relying upon any jurisdictional or procedural defects.

Petitioner was convicted in the Marion County Criminal Court, Division One, of the crime of second degree burglary and was sentenced to the Indiana State Prison for a term of not less than two years nor more than five years. The date of the original sentence was April 26, 1967. If he had remained in custody, the maximum expiration date of his imprisonment would have been April 26, 1972. On February 6, 1970, he escaped from a prison work detail. He was subsequently apprehended in Florida and returned to the Indiana State Rpison. Upon his return, prison officials recomputed the maximum expiration date of his sentence to compensate for the period of his absence, and found that he must serve until November 23, 1972.

Petitioner contends that the due process clauses of both the United States and Indiana constitutions (U.S.Const. amend. XIV, § 1; Ind.Const. art. 1, § 12) require that before he is denied credit for the period of time that he was on vacation in sunny Florida (during season), he should be afforded a judicial hearing because:

'The Department of Correction has no authority to set as a court of law and administer sentences to inmates of the Indiana Institutions, only a Court of Law has this authority vested in it. The Department of Correction has the authority to hold a prisoner in prison for the maximum term of his sentence, but, no authority to hold a prisoner beyond his maximum expiration date that has been established statutorily by a Court of Law.'

The proposition that an unauthorized absence from confinement will extend the expiration date of a prisoner's sentence, is well settled. Such an issue was presented to this court over 100 years ago in Ex Parte Clifford (1867), 29 Ind. 106. That case involved a writ of habeas corpus in which the petitioner, who had escaped from prison and had been recaptured after the termination of this original sentence, complained that his confinement was illegal because it exceeded his original expiration date. It was determined that the appellant could not 'avail himself of the fact that while he was illegally at large the date at which his imprisonment was to have terminated had passed.' Id. at 108.

'(S)ince the liberty gained by the prisoner is wholly owing to his own wrong, there seems to be no reason why he should have any manner of advantage from it.' Id.

Other courts considering the question have consistently reached the same conclusion. Ex Parte Vance (1891), 90 Cal. 208, 27 P. 209; Hollon v. Hopkins (1879), 21 Kan. 638; Dolan's Case (1869), 101 Mass. 219; State ex rel. Siehl v. Jorgenson (1919), 176 Minn. 572, 224 N.W. 156; Application of Edwards (1891), 43 N.J. Law 555, 39 Am.R. 610; Henderson v. James (1895), 52 Ohio St. 242, 39 N.E. 805. We believe the expression of the Massachusetts court in Dolan's Case, supra, to be most appropriate:

'The petitioner seeks to be discharged on the ground that the term for which he was committed has expired by mere lapse of time; although the period of his actual imprisonment has been less than that for which he was sentenced, by reason of his escape and absence at large for nearly a year during the time.

We are of the opinion that the sentence of the law is to be satisfied only by actual suffering of the imprisonment imposed unless remitted by death or some legal authority. The punishment is imprisonment, the period of which is expressed only by the designated length of time. Neither the date of its commencement, nor of its expiration, is fixed by the terms of the sentence.' Id. at 222. (emphasis supplied)

In Overlade v. Wells (1953), 234 Ind. 436, 127 N.E.2d 686, this court held that where a parolee is declared delinquent, he may be required to make up the maximum term of his sentence notwithstanding that the time of his initial expiration date might have passed:

'The unserved portion of his maximum sentence remaining at the time he was declared delinquent could be legally satisfied in only three ways, (1) by actual service within the confines of the State Prison; (2) by pardon or communication by the Governor; or (3) by appropriate action of the Board of Parole for Indiana State Prison. 234 Ind. at 449, 127 N.E.2d at 692.

The only statute dealing with this matter appears to be IC 1971, 35--1--20--7, Burns' Ind.Stat.Ann. § 9--1022 (1956 Repl.) which provides that:

'If any convict confined in the state prison shall escape therefrom, he may be retaken and imprisoned again, notwithstanding the time for which he was sentenced to be imprisoned may have expired when he shall be retaken, and he shall remain so imprisoned until tired for such escape, or until he be discharged on a failure to prosecute therefor.'

We believe that we are preserving the legislative intent by reading the statute in the disjunctive. It is doubtful that the General Assembly meant to allow a prisoner to escape and have the period of his absence credited to his sentence. Clearly, the portion of the statute referring to discharge for nonprosecution applies to the time when the prisoner would be entitled to his release after the recomputation of his sentence. A similar reading was reached in Ex Parte Clifford (1867), 29 Ind. 106, 107--08.

We find that the summary recomputation of the prisoner's termination date conforms with due process of law requirements. Any determination of a new expiration date involves primarily a mathematical calculation.

The United States Supreme Court has stated that 'due process varies from case to case in accordance with differing circumstances . . .' FCC v. WJR (1949) 337 U.S. 265, 276, 69 S.Ct. 1097, 1103, 93 L.Ed. 1353, 1360. Certainly, the function of resetting a prisoner's expiration date, in this circumstance is properly styled as an administrative duty.

In construing 18 U.S.C. § 3568 (concerning the giving of credit for pre-sentence confinement), a United States Circuit Court of Appeals has stated that 'the computation of the service of a legally rendered sentence is an administrative responsibility . . .' Lee v. United States (9th Cir. 1968), 400 F.2d 185, 189.

The only consideration will be simple mathematics of adding the time of absence to the original expiration date. It is significant to note that the petitioner in the present case does not claim the recomputation of his sentence is incorrect. A prisoner is not without a remedy in cases where the recomputation of his maximum expiration date is...