Kleczka v. Com.
| Decision Date | 04 January 1966 |
| Citation | 213 N.E.2d 390,350 Mass. 74 |
| Parties | George J. KLECZKA v. COMMONWEALTH. Joseph M. DICENZO v. COMMONWEALTH. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Louis M. Nordlinger, Townsend, for petitioners.
Richard W. Murphy and Robert J. Kelly, Sp. Asst. Attys. Gen., for respondent.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.
These two petitions, each for a writ of error, seek to review criminal judgments. The cases present essentially the same question, the nature of which is sufficiently indicated by stating the facts concerning Kleczka.
Kleczka on June 12, 1963, pleaded guilty to twelve charges of larceny by means of worthless checks. He had filed written waivers of indictment and of the appointment of counsel. He was sentenced to imprisonment for three to five years, all sentences to be served concurrently. The judge in imposing sentence made no reference to an earlier sentence of Kleczka in October, 1960, to a term of imprisonment for three to five years, from which he had been released on parole on December 14, 1961. He had remained at liberty until May 28, 1963, when he was arrested for the later offences. The parole board issued a parole revocation warrant on May 27, 1963. This was filed with the jail in which Kleezka was confined. No action was taken under the revocation warrant to bring about his return to prison to resume serving the unfinished 1960 sentence. In June, 1965, he was placed upon parole from the 1963 sentences to resume serving the 1960 sentence. In November, 1965, he was released upon parole both with respect to the 1960 sentence and to the 1963 sentences. Kleczka assigns as error principally that he was sentenced on June 12, 1963, on the new charges, without first having been returned to prison 'under a re-instatement of the term of his original [1960] mittimus.'
The case was heard by a single justice who ordered the 1963 judgments affirmed. The case is before us upon Kleczka's bill of exceptions and the return of the Chief Justice of the Superior Court. 2
1. We need not pass upon the Attorney General's contention that the 1963 judgments against Kleczka cannot be reviewed by writ of error. The petitioners' contentions cannot prevail even if considered on the merits.
2. Kleczka's parole on the 1960 sentence was properly revoked when he committed the 1963 offences. There was no error in lodging the revocation warrant (without serving it) with the institutions having him in confinement either awaiting trial for the later offences or under the later sentences. See G.L. c. 127, § 149 (), which is set out in part in the margin. 3 The final sentence of § 149, as amended, is conclusive of these cases. See Harding v. State Bd. of Parole, 307 Mass. 217, 220-222, 29 N.E.2d 756; Zerbst v. Kidwell, 304 U.S. 359, 362-364, 58 S.Ct. 872, 82 L.Ed. 1399; Woykovsky v. Chappell, 119 U.S.App.D.C. 8, 336 F.2d 927, 928, cert. den. 380 U.S. 916, 85 S.Ct. 903, 13 L.Ed.2d 801; Smith v. Krimsky, 209 F.Supp. 273, 274 (S.D.N.Y.). Various cases somewhat relied upon by the petitioners arise under different statutes, and involve different situations. See Zerbst v. Lyman, 255 F. 609, 610, 5 A.L.R. 377 (5th Cir.); Dickerson v. Perkins, 182 Iowa, 871, 874-875, 166 N.W. 293, 5 A.L.R. 374; note, 65 Harv.L.Rev. 309, 313-314. See also Ex parte Gafford, 25 Nev. 101, 103, 57 P. 484; In re Black, 162 N.C. 457, 458-459, 78 S.E. 273.
Exceptions overruled.
1 In 1958 DiCenzo was sentenced to a three to five year term. He was given a parole release in November or December, 1959. In January, 1960, he committed a new offence, for which he was sentenced to a new term of imprisonment for six to eight years. In 1962, while in prison he was tried for still other offences and was given further sentences. He is still serving the 1960 and 1962 sentences. A warrant for the revocation of his parole on the 1958 sentence is lodged at the prison.
2 The facts are set forth upon the basis of...
To continue reading
Request your trial
-
Kleczka v. Commonwealth of Massachusetts
...affirmed and the petitioner filed a bill of exceptions. The case was decided by the full bench on January 4, 1966, Kleczka v. Commonwealth, 1966 Adv.Sh. 31, 213 N.E.2d 390. The court's opinion is incorporated by reference in the applicant's petition to this court. It overruled his exception......
-
Zullo, In re, 93-P-1428
... ... Massachusetts did not lodge a detainer for the petitioner while he was imprisoned at the Oregon penitentiary. 2 [37 Mass.App.Ct. 373] See Kleczka v. Commonwealth, 350 ... Mass. 74, 76, 213 N.E.2d 390 (1966). Upon his release, the petitioner remained at large until discharged from his Oregon ... ...
-
Com. v. McGarty
...c. 310, § 2; Commonwealth v. Burrone, 347 Mass. 451, 452--453, 198 N.E.2d 407), it would have been governed by Kleczka v. Commonwealth, 350 Mass. 74, 76--77, 213 N.E.2d 390. The parole board's failure to serve the revocation warrants did not constitute interference by the board with the jud......
- Slater v. Board of Appeals of Brookline