Passwater v. Winn, 30823

• Decision Date: 19 September 1967
• Docket Number: No. 30823,30823
• Citation: 229 N.E.2d 622,248 Ind. 404
• Court: Indiana Supreme Court
• Parties: Marcus PASSWATER, Jr., as Sheriff of Hamilton County, George F. Denton, as Compact Administrator of the Department of Correction, State of Indiana, Arthur Campbell, as Commissioner, Department of Correction, State of Indiana, All Agents, Employees and Attache § of the Department of Correction, and Compact Detainer, Division of the State of Indiana, Appellants, v. Edward S. WINN, Appellee.

Page 622

229 N.E.2d 622

248 Ind. 404

Marcus PASSWATER, Jr., as Sheriff of Hamilton County, George F. Denton, as Compact Administrator of the Department of Correction, State of Indiana, Arthur Campbell, as Commissioner, Department of Correction, State of Indiana All Agents, Employees and Attache § of the Department of Correction, and Compact Detainer, Division of the State of Indiana, Appellants, v. Edward S. WINN, Appellee.

No. 30823.

Supreme Court of Indiana.

Sept. 19, 1967.

John J. Dillon, Atty. Gen., Raymond I. Klagiss, Deputy Atty. Gen., for appellants.

William C. Erbecker, Indianapolis, for appellee.

HUNTER, Chief Justice.

This is an appeal from the Hamilton Circuit Court wherein the court under habeas corpus proceedings discharged the appellee from the custody of the appellants. Prior to the incarceration of the appellee by the Hamilton County officials, the following events had occurred: the appellee was on parole after having been convicted of murder in Texas. He came to Indianapolis after his release but he was still under sentence. Apparently his parole was revoked and under the authority of interstate compact concerning parolees (see Ind.Ann.Stat. § 9--3001 et seq.), the administrator of the compact issued a detainer which had the appellee taken into custody in the Marion County Jail. Subsequently, appellee filed a petition for a writ of habeas corpus which was denied by the Marion Circuit Court. Appellee initiated an appeal from this action and was released on appeal bond. (This appeal has been dismissed, see Winn v. Fields (1966), Ind., 219 N.E.2d 896.) The parole authorities had appellee reapprehended but the Marion County sheriff's office refused to accept him, as he was considered free on appeal bond. Consequently, the authorities took him to Hamilton County where he was held. The appellee then filed a petition for a writ of habeas corpus in the Hamilton Circuit Court which was granted. This appeal then arose.

The main issue before this Court relates to the propriety of the Hamilton Circuit Court's action in releasing the appellee. The writ before the lower court questioned the Hamilton County officials' authority to restrain the appellee.

The appellants would have this Court decide this question on the basis that the Hamilton Circuit Court exceeded its jurisdiction because it in effect reviewed the judgment of another court. See Bangs v. Johnson, Sheriff (1937), 211 Ind. 314, 6 N.E.2d 944; Lane v. Hobbs (1965), Ind., 208 N.E.2d 182. However, the action of the Hamilton Circuit Court in no way reviewed the action of another trial court. The detention of the appellee by the Hamilton County officials was in no way related to the action of the Marion Circuit Court which in fact had released the appellee on an appeal bond. Realistically, it would seem that the appellants, themselves, wanted the Hamilton Circuit Court to review the action of the Marion Circuit Court by having the appeal bond declared an error, so that they would have a basis for reapprehending the appellee under the original detainer. It was this very action which the Hamilton Circuit Court refused to take when it released the appellee. (We do not have the question of the propriety of the appeal bond before us and we do not consider the issue.) Consequently, we fail to see that the appellants' contentions have any merit.

Since the Hamilton Circuit Court had no jurisdiction to consider the propriety of the appeal bond issued by the Marion Circuit Court, the question becomes by what authority did the Hamilton County officials arrest and jail the appellee while he was free on an appeal bond.

The only authority shown in the return to the writ for the arrest or detainment of the appellee related to the original detainer under the interstate parole compact. The appellee in effect would have us decide the constitutionality of this legislation (Ind.Ann.Stat. § 9--3001 et seq.), thereby making the detainer insufficient authority regardless of the circumstances. However, a constitutional question unnecessary to a determination of the merits should not be decided. Peters et al. v. Board of Comrs. (1963), 244 Ind. 544, 551, 194 N.E.2d 619; Roth v. Local Union No. 1460 of Retail Clerks Union (1939), 216 Ind. 363, 369, 24 N.E.2d 280.

There are no cases in point cited to us by either the appellants or appellee, nor have we found any. We are of the opinion once a defendant has been taken into custody under a detainer and set free in proceedings involved in the detainer within a court of competent jurisdiction, the detainer loses whatever authority it once had until further action by such court. Therefore, since appellee was still involved in proceedings relating to his first detention under the detainer and was free on an appeal bond by the authority of the Marion Circuit Court, until further action by such court, the original detainer was not sufficient authority for the Hamilton County officials to arrest and put the appellee in jail.

Since no other authority is in the record by which the Hamilton County officials could have taken such action, the Hamilton Circuit Court was correct when it granted the writ and discharged the appellee.

Judgment affirmed.

MOTE, J., dissents with opinion.

MOTE, Judge (dissenting opinion):

I wish to record my dissent to the majority opinion and decision in this cause.

The record in this appeal reveals that Appellee was incarcerated in the Hamilton County Jail and filed a verified petition for a writ of habeas corpus. Motion to quash the petition was overruled and after a hearing, Appellee was released. This appeal stems from the order of release by the Judge of the Hamilton Circuit Court.

Prior to the above proceeding, which resulted in Appellee's release, it appears that Appellee had been convicted of the crime of murder in the State of Texas; that he had been found guilty; and that he received a sentence for said crime for a period of not less than 2 years to life. He had been paroled by the State of Texas and under the Uniform Interstate Compact for the Supervision of Parolees and Probationers, he was paroled to the State of Indiana and came under the supervision of the Indiana Parole Authorities.

Because of what appeared to be a violation of the conditions of his parole, the Board of Pardons and Paroles for the State of Texas issued to the Indiana Authorities an order that Appellee be arrested and detained and on the issuance of a warrant therefor, Appellee was arrested and placed in the Marion County Jail.

Appellee then filed a petition for writ of habeas corpus and after hearing, the same was denied. However, at the conclusion of the hearing and denial, Appellee sought release pending appeal to this Court and posted a $3,000 bond. Appellee then was released.

The State of Indiana took exception to Appellee's release on bond pending appeal and filed in the Marion Circuit Court what is designated as a 'Motion to Expunge Clerical Error and/or Order from the Record and Special Prayer for Immediate and Summary Relief'. The matter was set for hearing and Appellee asked for a continuance which was granted. Thereafter and before any hearing in the matter pending in the Marion Circuit Court, Appellee filed in the Hamilton Circuit Court another writ of hebeas corpus and after hearing thereon, Appellee was released. It is that order of release which concerns us in this appeal.

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