Jurczyszyn v. Pascoe

• Decision Date: 06 January 1947
• Docket Number: Oct. Term, 1946.,No. 297,297
• Citation: 316 Mich. 529,25 N.W.2d 609
• Parties: JURCZYSZYN v. PASCOE et al. Parole Board.
• Court: Michigan Supreme Court

316 Mich. 529

25 N.W.2d 609

JURCZYSZYN

v.PASCOE et al. Parole Board.

No. 297, Oct. Term, 1946.

Supreme Court of Michigan.

Jan. 6, 1947.

Original mandamus proceeding by Casmere Jurczyszyn against A. Ross Pascoe and others, members, Michigan Parole Board, for an order directing defendant board to show cause why it should not be compelled to set aside an order holding plaintiff to be a parole violator owing service to state under a mittimus issued by judge of the recorder's court of the city of Detroit on December 20, 1935.

Writ denied.

Before the Entire Bench, except DETHMERS, J.

Michael J. Mozola, of Hamtramck (David M. Miro, of Detroit, of counsel), for petitioner.

Foss O. Eldred, Atty, Gen., Edmund E. Shepherd, Sol, Gen., of Lansing, and Daniel J. O'Hara and Perry A. Maynard, Ass't. Attys. Gen., for defendants.

BOYLES, Justice.

On an original petition for mandamus in this court plaintiff was granted an order directing the defendant parole board to show cause why it should not be compelled to set aside an order holding plaintiff to be a parole violator owing service to the State under a certain mittimus issued by a judge of the recorder's court of city of Detroit on December 20, 1935. The answer of the parole board and plaintiff's reply thereto have been received and filed, and briefs filed. The question involved is whether further jurisdiction of this State over the plaintiff was waived by virtue of the governor having granted the State of Ohio a warrant of rendition for return of plaintiff to that State to answer to a criminal charge, while plaintiff was on parole after a sentence to and confinement in the State prison in this State.

On December 20, 1935, plaintiff, after conviction in Wayne county of the crime of robbery armed, was committed to the State prison to serve 7 1/2 to 20 years, by a judge of the recorder's court. On January 28, 1941, plaintiff was paroled. One of the conditions of parole was that he remain in Wayne county for 4 years (to January 28, 1945), or until some other action was taken by the parole board. The chronological history of plaintiff's further involvement thereafter with the criminal laws is as follows:

On July 8, 1942, the parole board declared plaintiff a parole violator for the reason that he had been arrested by the Detroit police for questioning on a charge preferred by the authorities of Lucas county, Ohio, to the effect that plaintiff had committed the crime of robbery armed in that county, on June 5, 1942 (while he was on parole as above stated). On July 23, 1942, the governor of the State of Ohio made requisition to the governor of this State for the extradition of plaintiff to answer to an indictment charging him with the aforesaid crime in said Lucas county. After a hearing before the governor of this State, on August 5, 1942, the governor granted a warrant of rendition and plaintiff was thereupon taken to Ohio.

After plaintiff was extradited to Ohio, he stood trial in Lucas county for the crime of robbery armed. On October 26, 1942, before plaintiff's trial in Lucas county, Ohio, the bureau of pardons and paroles issued a parole violation warrant on the ground that plaintiff had violated the terms of his parole; plaintiff was declared to be an escaped prisoner owing service to this State from and after July 8, 1942, and a detainer was placed against plaintiff with the authorities at Toledo, Ohio. On his trial in Lucas county, Ohio, a mistrial was declared, and subsequently an order of nolle prosequi was entered. On January 4, 1943, plaintiff was released by the Ohio authorities and on January 6, 1943, he returned to Detroit. In his reply to defendant's answer he claims that he ‘was ordered to return to Michigan under parole supervision which he did, not of his own free will but by coercion and compulsion on the part of parole officers who threatened to incarcerate him in Jackson prison. That the order of the parole board made to plaintiff while he was in jail in Ohio was unlawful and that the defendants had no right to exercise any authority over said plaintiff inasmuch as the warrant of rendition was signed by the governor of Michigan on August 5, 1942, and that as of that date the State of Michigan, had forfeited all rights to the plaintiff as far as parole supervision was concerned.'

On his return to Detroit on January 6, 1943, plaintiff reported to his parole officer, who recommended that the warrant for parole violation be suspended and that plaintiff be permitted to continue on parole. This suggestion was adopted, and plaintiff continued to work for the Ford Company, making reports to his parole officer at the Detroit office each month thereafter from January, 1943, through November of that year. In November, he committed another crime.

On June 30, 1944, plaintiff, having been convicted by a jury in recorder's court of the city of Detroit of the crime of larceny in a building committed on November 25, 1943, was sentenced to the State prison of southern Michigan, to serve a sentence of from 3 to 4 years for said offense. On December 21, 1944, plaintiff was heard by the parole board, held to be automatically guilty of violating his parole by virtue of reception of the new sentence (and not by virtue of the former violation on June 5, 1942), and his case was passed indefinitely to the maximum sentence imposed for his first offense committed in 1935. By this action of the parole board he is required to serve the rest of his 1935 sentence, less allowable credits. The department of corrections gave plaintiff credit for time served on the sentence of December 20, 1935, for the entire period between July 8, 1942, and November 25, 1943, when he again offended the law of this State by committing larceny in a building. When plaintiff was charged with the latter offense, November 25, 1943, his parole was suspended and thereafter revoked. He is now serving time in State prison for the unserved balance of the 1935 sentence after credits were allowed, at the expiration of which time he will begin to serve the new sentence imposed June 30, 1944, upon his last conviction.

Plaintiff seeks an order of this court requiring the parole board to cancel and set aside its order holding that plaintiff is still liable to imprisonment as a parole violator and under the sentence imposed in the recorder's court in 1934. He makes no claim against serving 3 to 4 years in State prison under his sentence in 1944, but objects to completing his term of imprisonment under the 1935 sentence before beginning to serve time under the 1944 sentence. His sole claim is, in effect, that the State lost jurisdiction over him, in so far as the 1935 sentence was involved, when the governor of this State granted a warrant of rendition for his return to Ohio, on August 5, 1942, to answer to an indictment charging him with having committed a crime in that State (at which time plaintiff was on parole in this State).

The question as to plaintiff's status while on parole under the 1935 sentence is settled by the statute law of this State. Act No. 255, chap. 3, § 8, Pub.Acts 1937, Stat.Ann. 1940 Cum.Supp. § 28.2108, provides:

‘Every prisoner on parole shall remain in the legal custody and under the control of the (corrections) commission. The assistant director of the bureau of pardons and paroles is hereby authorized, at any time in his discretion, and upon a showing of probable violation of parole, to issue a warrant for the return of any paroled prisoner to the penal institution from which he was paroled. * * *

‘A prisoner violating the provisions of his parole and for whose return a warrant has been issued by the assistant director of the bureau of pardons and paroles shall, after the issuance of such warrant be treated as an escaped prisoner owing service to the state, and shall be liable, when arrested, to serve out the unexpired portion of his maximum imprisonment, * * *.

‘Any prisoner committing a crime while at large upon parole and being convicted and sentenced therefor shall serve the second sentence after the first sentence is served or annulled.

‘A parole granted a prisoner shall be construed simply as a permit to such prisoner to go without the enclosure of the prison, and not as a release, and while so at large he shall be deemed to be still serving out the sentence imposed upon him by the court, * * *’.

The above act has been before this court on several occasions. In re Dawsett, 311 Mich. 588, 19 N.W.2d 110, 111, Dawsett was released from custody, on parole, for return to the State of New York to answer for a crime committed in that State. He was not extradited, but...