Pierce v. Smith

• Decision Date: 25 June 1948
• Docket Number: 30559.
• Citation: 195 P.2d 112,31 Wn.2d 52
• Parties: PIERCE v. SMITH.
• Court: Washington Supreme Court

195 P.2d 112

31 Wn.2d 52

PIERCE v. SMITH.

No. 30559.

Supreme Court of Washington

June 25, 1948

Rehearing Denied July 22, 1948.

Proceeding in the matter of the application of Bruce Pierce for a writ of habeas corpus, opposed by Tom Smith, Superintendent of the Washington State Penitentiary at Walla Walla. From an order denying the writ, petitioner appeals.

Affirmed.

Appeal from Superior Court, Yakima County; Robert J. Willis, Judge.

Bruce Pierce, pro se.

Smith Troy and Lucile Lomen, both of Olympia, for respondent.

MILLARD Justice.

The petition of Bruce Pierce, filed in this court, October 2 1947, for writ of habeas corpus, alleged that the petitioner was unlawfully removed from Oregon without extradition; that he was then taken to the Washington state penitentiary where he was confined, although he had not been tried or convicted of any crime since his return to this state from Oregon; and that his detention was in contravention of his constitutional rights.

An order was entered, October 31, 1947, by the chief justice of this court, requiring the superintendent of the Washington state penitentiary to show cause in the superior court for Yakima county why the petition should not be granted. The return of the superintendent to the order to show cause discloses that the petitioner pleaded guilty to an information charging him with the crime of taking indecent liberties, and that, on November 10, 1939, he was adjudged guilty of that crime and sentenced to confinement in the state reformatory for a period of not more than twenty years.

February 7, 1940, the board of prison terms and paroles fixed the minimum duration of the confinement of petitioner in the reformatory at three years.

November 9, 1941, petitioner was paroled, to go to his home in Oregon City, Oregon. October 23, 1942, he was arrested on Oregon and charged with the crime of contributing to the delinquency of a minor. He was sentenced, January 13, 1943 to serve a one-year jail term in Oregon. March 5, 1943, the Washington parole was revoked, and, upon completion of his sentence in Oregon, petitioner was returned to the Washington state reformatory as a parole violator.

April 10, 1944, petitioner was again paroled to his family in Oregon, to be under the supervision of the officials of the parole board for the state of Oregon. Upon the recommendation of the Oregon board, his parole was revoked, November 23 1945, and he was returned to the Washington state reformatory as a parole violator.

January 24, 1946, pursuant to order of the board of prison terms and paroles, petitioner was transferred from the reformatory to the state penitentiary at Walla Walla, to serve the balance of his term.

At the hearing to the superior court for Yakima county, December 20, 1947, petitioner appeared without counsel. No witnesses were called or sworn, but the documentary evidence introduced discloses the following facts:

An information was filed in Yakima, June 28, 1939, charging Pierce with the crime of taking indecent liberties, and on the same day an order for a warrant was filed, pursuant to which a warrant of arrest was issued, and petitioner was arraigned, November 10, 1939, on which date, while represented by counsel, petitioner entered a plea of guilty. Judgment was entered sentencing petitioner to confinement in the state reformatory for not more than twenty years.

April 10, 1944, petitioner was paroled and permitted to go to Oregon, where he was under the supervision of the Oregon parole board. Upon the recommendation of that board, the parole of petitioner was revoked and he was returned to the Washington state reformatory. The board of prison terms and paroles transferred petitioner to the state penitentiary at Walla Walla, to serve the remainder of his term. The order issued by the board provided that the case of Bruce Pierce be continued 'for a period of his full 20 year maximum sentence from the 10th day of November, 1939.'

The petition of Pierce for removal of the cause to the United States district court was denied, as was his petition for a writ of habeas corpus. The appeal is prosecuted from the order denying the writ of habeas corpus.

The contention of appellant, that, when the board of prison terms and paroles has once fixed the duration of a prisoner's sentence, the period thus fixed becomes the maximum term and the board is without authority to alter that term or to authorize the prisoner's detention beyond the expiration date of such period, is without substantial merit.

It is mandatory, under Laws of 1935, chapter 114, p. 308, § 2, Rem.Rev.Stat. (Sup.) § 10249-2, upon the court to fix the maximum term of sentence only. Within six months after the admission of such convicted person to the penitentiary or reformatory, as the case may be, the board of prison terms and paroles 'shall fix the duration of his or her confinement.' The statute further provides that the term of imprisonment so fixed shall not exceed the maximum provided by law for the offense for which the person was convicted, or the maximum fixed by the court, where the law does not provide for a maximum term. Any convicted person undergoing sentence in the penitentiary or the reformatory, not sooner released under the provisions of § 2 of the cited statutes, shall, in accordance with the provisions of existing law, '* * * be discharged from custody on serving the maximum punishment provided by law for the offense of which such person was convicted, or the maximum term fixed by the court where the law does not provide for a maximum term.'

The statute, Laws of 1939, chapter 142, § 4, p. 422, Rem.Rev.Stat. (Sup.) § 10249-4, relating to release on parole of prisoners who have been sentenced to a term in the state penitentiary or reformatory, provides that '* * * no prisoner shall be released from the penitentiary or the reformatory unless, in the opinion of the Board of Prison, Terms and Paroles, his rehabilitation has been complete and he is a fit subject for release, or until his maximum term expires.'

Manifestly, a person is not entitled to release from the state penitentiary or reformatory prior to the expiration of his maximum term, unless the board of prison terms and paroles is of the view that he has been rehabilitated.

In Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 789, 81 L.Ed. 1182, the United States supreme court held that, under Laws of 1935, chapter 114, p. 308, the sentence of the defendant in this state for a period of fifteen years was made mandatory by the statute; that the parole board was authorized to fix the duration of confinement within that period and to fix it anew within that period for infraction of the rules; and that, even if paroled, the prisoner would remain subject to surveillance, and, until the expiration of the fifteen years, his parole would be subject to revocation at the discretion of the board or the governor. The court stated:

'The effect of the new statute is to make mandatory what was Before only the maximum sentence. Under it the prisoners may be held to confinement during the entire fifteen-year period. Even if they are admitted to parole, to which they become eligible after the expiration of the terms fixed by the board, they remain subject to its surveillance and the parole may, until the expiration of the fifteen years, be revoked at the discretion of the board or cancelled at the will of the governor. * * *

'Removal of the possibility of a sentence of less than fifteen years, at the end of which petitioners would be freed from further confinement and the tutelage of a parole revocable at will, operates to their detriment in the sense that the standard of punishment adopted by the new statute is more onerous than that of the old. * * * It is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term.'

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