Medlock v. Schmidt

• Decision Date: 30 November 1965
• Citation: 138 N.W.2d 248,29 Wis.2d 114
• Parties: Governour T. MEDLOCK, Appellant, v. Wilbur J. SCHMIDT, Director State Dept. of Public Welfare, Respondent.
• Court: Wisconsin Supreme Court

Page 248

138 N.W.2d 248

29 Wis.2d 114

Governour T. MEDLOCK, Appellant, v. Wilbur J. SCHMIDT, Director State Dept. of Public Welfare, Respondent.

Supreme Court of Wisconsin.

Nov. 30, 1965.

Barbee & Jacobson, Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., Willaim A. Platz, Asst. Atty. Gen., Madison, for respondent.

HEFFERNAN, Justice.

'When I use a word, it means just what I choose it to mean--neither more nor less.'

Humpty Dumpty in Alice in Wonderland, Lewis Carroll

We agree with the decision of the learned trial judge, but conclude that the pardon document may on its face be construed to provide for a maximum sentence of thirty years.

The appellant in his brief and in oral argument placed great emphasis on the fact that the sentences of three to ten years for assault and robbery, and three to thirty years for assault and armed robbery, were by the document of commutation directed to be served concurrently with the sentence of fourteen to twenty-five years for the second-degree murder. He contends that the effect of this is to 'squeeze' the thirty-year term into twenty-five years, thus reducing the maximum. He bases this conclusion upon the premise that it was unnatural for the author of the pardon document to refer to the three sentences in that order unless he intended the fourteen to twenty-five year term to define the maximum.

In interpreting this document, however, it must be remembered that the sentences as originally imposed were consecutive, and that the term for fourteen to twenty-five years commenced in 1952 and at the time of the commutation was still running. The appellant was in fact still confined by virtue of the first of the three consecutive sentences, the one for second-degree murder. The other two would commence only when the preceding sentence had been served. It is conceded by both appellant and respondent that the effect of executive clemency was to make all three of the sentence concurrent. The effect is as though the sentencing judge had originally ordered three concurrent sentences. Since the record shows that one of the three sentences was partially served, it was necessary that the author of the document make it clear that the other two sentences were to be concurrent with it; hence, the very natural phrase, under the circumstances, that 'the sentences of three to ten years' and 'three to thirty years' (neither of which had started to run) were 'to be served concurrently with the sentence of fourteen to twenty-five years,' which had been served in part. By virtue of this commutation directing the sentences to be served concurrently, there was in effect a sentencing nunc pro tunc, having the effect of starting all of the terms simultaneously with the one that had commenced in 1952. The ordinary and well-recognized rule is therefore applicable.

'Where sentences imposed at different times or for different periods of time fun concurrently, the sentences run together during the time that the periods overlap; and the new or longer term does not necessarily terminate at the same time as the prior or shorter term.' 24B C.J.S. Criminal Law § 1996(1), p. 660.

The same rule, that the prisoner will be discharged at the expiration of the longest of concurrent terms, is recognized also by 15 Am.Jur., Criminal Law, page 123, sec. 465.

This court in the Application of McDonald (1922), 178 Wis. 167, 172, 189 N.W. 1029, held that when sentences are determined to be concurrent that there was no authority for holding a prisoner after the date at which 'the latest of such sentences as to the period of confinement thereunder had expired.' When sentences are to run concurrently, the maximum term imposed is determined by the longest sentence.

While we agree with the decision of the trial court, it is apparent from a perusal of the record and of his opinion that he did not construe the pardon on its face, rather he concluded that it was ambiguous and sought extrinsic evidence to interpret it. It is proper that he should do so if he considered the document to be ambiguous. We cannot agree, however, with the evidence which he, on his own motion, and over the objection of both counsel, utilized to reach his conclusion. The trial judge sought to determine the intent of the governor by seeking the advice of Mr. Thomas W. Pierce, pardon counsel for Governor Nelson at the time of the Medlock pardon. It was on the basis of this information that Judge Bardwell concluded:

'In the absence of any other showing of intent we assume that Governor Nelson was following the recommendation of his Pardon Counsel when he issued the pardon * * *.'

It is our conclusion that the intent of the pardon counsel, as evinced either by his memory of the occurrence or by a copy of the letter of recommendation he sent to the governor at the time, is not relevant. The intent to be determined is that of the governor, as declared in the document, and...