State v. Fazzano

• Decision Date: 29 October 1963
• Docket Number: 648,Nos. 647,s. 647
• Parties: STATE v. Alphonse G. FAZZANO (two cases). C. Q.
• Court: Rhode Island Supreme Court

Page 680

194 A.2d 680

96 R.I. 472

STATE v. Alphonse G. FAZZANO (two cases).

C. Q. Nos. 647, 648.

Supreme Court of Rhode Island.

Oct. 29, 1963.

J. Joseph Nugent, Atty. Gen., Corinne P. Grande, Special Counsel, for respondent State.

Aram K. Berberian, Providence, for defendant petitioner.

JOSLIN, Justice.

These two cases are before us on certifications from the superior court of an identical question of doubt and importance in each case. The cases are actually pending in the superior court upon like petitions filed in each case for a writ of habeas corpus ad subjiciendum by which the petitioner seeks his release from confinement at the adult correctional institutions.

The findings of fact made by the superior court in connection with the certifications disclose the following to be essential to a disposition thereof:

1. On November 24, 1954 petitioner on his pleas of nolo contendere was given deferred sentences on indictment No. 27111 which charged him with breaking and entering in the nighttime with intent to commit larceny, and on indictment No. 27112 which charged him with possession of burglar tools. It is within these proceedings that his petitions for habeas corpus have been filed.

2. On October 15, 1956 a deferred sentence was imposed on petitioner upon his plea of nolo contendere to indictment No. 27963 charging him with unlawful possession of narcotics.

3. On April 16, 1957 petitioner, having violated the deferred sentences given to him on November 24, 1954 on indictments Nos. 27111 and 27112, was sentenced to serve a term of 7 years on each deferred. Said sentences are sometimes hereinafter referred to as 'original sentence.' The findings of fact do not disclose whether in imposing sentences for such violations the trial justice stated whether the terms were to run consecutively or concurrently.

4. On October 4, 1961 the parole board acting upon the petitioner's application voted to parole him and thereafter he was released from the adult correctional institutions on October 16, 1961, on which date the unexpired portion of the original term was 10 months and 20 days.

5. On February 14, 1962 while at liberty on parole a sentence of 15 months was imposed on petitioner for violation of the deferred sentence given to him on October 15, 1956 on indictment No. 27963.

6. On February 28, 1962 while petitioner was serving the 15 months sentence his parole permit was revoked by the parole board which ordered that the unexpired portion of the original sentence be served consecutively to the 15 months sentence.

In each case at the time the petition filed therein for a writ of habeas corpus was heard before the superior court, a justice of that court, under the authority of G.L.1956, § 9-24-27, certified to us the following question as one of doubt and importance:

'Do the provisions of 13-8-20 of the General Laws of 1956 which provide that the Parole Board may order that the time of serving the remainder of the original sentence of a parole violator shall run concurrently with or consecutively to another sentence imposed on said prisoner for an offense committed while at liberty upon parole, conflict with the provisions of Article III of the Rhode Island Constitution, which provides that 'the power of the government shall be distributed into three departments, the legislative, executive and judicial.''

The questions certified assume that at the time of the revocation of his parole permit, petitioner was confined under a sentence imposed for the commission of a crime while at liberty under parole. The findings of fact accompanying the certified questions negate such assumption. The petitioner was at the time of revocation confined in the adult correctional institutions on a criminal process resulting from a 15 months sentence for the violation of a deferred sentence and not by virtue of a sentence imposed for an offense committed while at liberty on parole. Since the constitutional issue raised is identical in either instance, we will answer the questions certified even though in form it may not be applicable to the finding of facts accompanying the certifications. See Prescott v. Kelley, 52 R.I. 45, 157 A. 198.

Section 13-8-20 is set out in full in the appendix hereto. The certified questions ask us to determine whether the portion which we have italicized is in conflict with art. III of the constitution of this state which provides that 'The powers of the government shall be distributed into three departments: the legislative, executive and judicial.' Stated otherwise, the questions certified request a determination by us of whether the discretionary grant of power to the parole board in § 13-8-20, to determine whether the unexpired portion of an original sentence shall be served concurrently with or consecutively to some other sentence, constitutes an unconstitutional legislative usurpation of the judicial prerogative.

Since petitioner was not admitted to bail at the time of the certifications, the problem is presented of our right to hear these matters in view of that portion of § 9-24-27 which provides 'that no question shall be so certified in any criminal case where the defendant has not been released on bail.' This issue was not briefed by counsel and we expressly refrain from passing thereon. Our failure to do so, however, should not be construed as either approval or disapproval on our part of the § 9-24-27 procedure being used in any criminal proceedings without regard to whether or not the defendant has been admitted to bail.

Section 13-8-20 embodies two legislative declarations. The first is a mandate to the effect that the original sentence of one whose parole has been revoked by the parole board while in a penal institution under criminal process or under sentence for an offense committed while at liberty on parole must be served consecutively to the time being served at the time of the revocation of the parole permit. We shall hereinafter sometimes refer to that portion as 'the mandate' of the statute. The mandate was first enacted by P.L.1915, chap. 1186, sec. 5, and as contained in § 13-8-20 is in substantially the same form. The second declaration in § 13-8-20, which is the portion we have italicized, was enacted by P.L.1953, chap. 3129. We shall sometimes hereinafter refer to it as 'the discretionary power.'

Notwithstanding that the certified questions relate only to the discretionary power, we shall discuss both it and the mandate since the constitutionality of each was the subject of oral argument before us. The threshold question is whether the portion of the mandate that directs that terms be served consecutively was beyond the power of the legislature constitutionally to enact.

In our opinion a legislative body is not inhibited from providing that a sentence for an offense committed while at liberty on parole shall run consecutively with the unexpired portion of an original or prior term. Any such enactment is not in conflict with the inherent judicial power to impose consecutive or concurrent sentences. This is the clear implication of the cases. In re Callahan, 348 Mich. 77, 81 N.W.2d 669; Harding v. State Board of Parole, 307 Mass. 217, 29 N.E.2d 756; Canfield v. Commissioner of Pardons and Paroles, 280 Mich. 305, 273 N.W. 578; Ex parte Green, 322 Mo. 857, 17 S.W.2d 939; People ex rel. Newton v. Twombly, 228 N.Y. 33, 126 N.E. 255, reversing 190 App.Div. 882, 178 N.Y.S. 736.

In Twombly, supra, the New York Court of Appeals construed a statute which provided: 'Where a person, under sentence for a felony, afterward commits any other felony, and is thereof convicted and sentenced to another term of imprisonment, the latter term shall not begin until the expiration of all the terms of imprisonment, to which he is already sentenced.'

Upon application of a relator whose parole was revoked after conviction and sentence to imprisonment for a crime committed while at liberty on parole, the court of appeals refused to release the petitioner. The court speaking through Judge Cardozo, later an associate justice of the United States Supreme Court, said: 'Under this statute, the declaration of delinquency, when followed by the return of the prisoner, postponed the execution of the second sentence until the execution of the first had been completed. * * * It is the mandate of the statute, establishing the order of succession in which sentences shall be served. * * * When the relator was declared delinquent, there were thenceforth two sentences of imprisonment in force. The law says that they must be served consecutively * * *.'

A similar construction was given by the Michigan court in Canfield, supra, to a statute which provided: 'Any prisoner committing a crime while at large upon parole or conditional release and being convicted and sentenced therefor shall serve the second sentence to commence from the date of termination of the first sentence after the first sentence is served or annulled.'

And in Callahan, supra, the Michigan court citing Canfield, supra, held that it is within the exclusive jurisdiction of the legislature to determine the length of a sentence which can be imposed upon conviction of a felony, the power of the judiciary being limited to the ministerial function of imposing a sentence within the permitted statutory limits.

Some courts have gone even further and held that where statutes require sentences to be served consecutively such statutes control even if the judge imposing the second sentence has directed that the sentences run concurrently. Commonwealth ex rel. Godfrey v. Banmiller, 404 Pa. 401, 171 A.2d 755; Hammerer v. Huff, 71 App.D.C. 246, 110 F.2d 113.

Not only is it within the power of the legislature to provide that one who...