Stilley v. Tinsley, 19940

• Citation: 385 P.2d 677,153 Colo. 66
• Decision Date: 26 August 1963
• Docket Number: No. 19940,19940
• Parties: Jerry STILLEY, Also known as Jerome Cobb, and also known as Jerome Scott, Plaintiff in Error, v. Harry C. TINSLEY, Warden of the Colorado State Penitentiary, Defendant in Error.
• Court: Colorado Supreme Court

Page 677

385 P.2d 677

153 Colo. 66

Jerry STILLEY, Also known as Jerome Cobb, and also known as Jerome Scott, Plaintiff in Error, v. Harry C. TINSLEY, Warden of the Colorado State Penitentiary Defendant in Error.

No. 19940.

Supreme Court of Colorado, En Banc.

Aug. 26, 1963.

Rehearing Denied Oct. 28, 1963.

Samuel D. Menin, Roger L. Simon, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., J. F. Brauer, Asst. Atty. Gen., Denver, for defendant in error.

HALL, Justice.

The parties appear here in the same order as in the trial court. We refer to them by name.

On June 28, 1961, Stilley filed in the trial court his amended petition for writ of habeas corpus alleging: (1) that Tinsley, as Warden of the Colorado State Penitentiary, is unlawfully confining him in said penitentiary as an alleged parole violator (2) that he was convicted of burglary in the Denver District Court and was, on November 24, 1954, sentenced to said penitentiary for a period of time not exceeding ten years and not less than one year, and that mittimus was issued in conformity with such sentence; (3) that at the time said sentence was imposed he was under twenty-one years of age and as provided by CRS '53, 39-10-1, could not be sentenced other than to the state reformatory; (4) that his sentence to the penitentiary and the mittimus issued pursuant thereto were and are void; and because said sentence was and is void his present confinement, for alleged violation of parole, is equally void and without authority.

He prayed that a writ of habeas corpus issue directing Tinsley to bring him before the court and show cause why he should not be released.

On presentation of and consideration of the petition an order for writ of habeas corpus was issued by the trial court directing Tinsley to comply with the prayer of the petition on July 10, 1961, at 2:00 P.M.

Pursuant to agreement of counsel for the parties return on the writ and hearing was continued until July 21, 1961.

On July 18, 1961, Tinsley filed his return to the writ in which he admits the sentence complained of and alleges that if the sentence is void because of Stilley's minority at the time of sentence, then the court should now impose a proper sentence upon him pursuant to the following language of this court in People ex rel. Metzger v. District Court of City & County of Denver, 119 Colo. 451, 208 P.2d 79 (First Metzger case):

'* * * If an illegal sentence has been pronounced the court has power to substitute a legal sentence, and this power is not impaired by the expiration of the term of court, during which the judgment was pronounced.'

Tinsley further alleges that the age of the person sentenced at the time of the sentence, rather than at the time of the offense or judgment, controls whether the sentence shall be to the penitentiary or some other institution.

Tinsley prays that if it be true, as alleged, that Stilley's sentence was illegal and void, he now being over the age of twenty-one, the court should now sentence him to the penitentiary 'either nunc pro tunc from the original date of sentencing or from this date.'

To this return Stilley filed his response, stating that People ex rel. Metzger v. District Court of City & County of Denver, supra, is not applicable to this case which falls squarely within the decision of this court in Rivera v. People, 128 Colo. 549, 265 P.2d 226.

On August 2, 1961, the parties filed a stipulation to the effect that Stilley was under the age of twenty-one years at the time of his sentence.

On final hearing, the parties, through their counsel, agreed that the sentence was void; the trial court so found and stated that the sentence 'was and is null and void,' and then proceeded as follows:

'* * * The Court now thinks he should pronounce a proper sentence. Will you stand up please, Mr. Stilley? In view of the decisions, the Court thinks this is the proper course to take. The Petition for Writ of Habeas Corpus is dismissed. It will be the judgment and sentence of the Court that you be taken from the bar of the court to the common jail; thence by the sheriff with all convenient speed to the State Penitentiary; delivered to the Warden or keeper thereof. The sentence to apply nunc pro tunc from the original date of sentencing, and the time already spent in the Penitentiary to count on this sentence; not less than one, nor more than ten years. All right. That's all.

* * *

* * *

'* * * Motion for new trial or rehearing dispensed with.'

Stilley is here by writ of error seeking reversal.

Counsel for Stilley contends here as he did in the trial court that the writ of habeas corpus should be sustained and Stilley discharged from the custody of Tinsley.

The attorney general contends that:

'* * * this court should remand petitioner to the trial court to receive the first proper sentence yet adjudged in this case, and this court should instruct that court that any sentence adjudged is to be effective on whatever date it is pronounced and not before.'

The judgment of the trial court cannot be sustained. Here the liberty of Stilley is at stake and though his record may be unsavory and his conduct not such as to appeal favorably to the conscience of the court, yet he is entitled to be dealt with in conformity with constitutional and statutory guarantees.

The only parties before the court were Stilley and Tinsley; the only question properly before the court was the then authority of Tinsley to restrain Stilley of his liberty and continue to confine him in the state penitentiary. Tinsley, seeking to justify his restraint of Stilley, relied entirely upon a mittimus issued pursuant to a void judgment.

Stilley proceeded to assert all rights reserved to the people and guaranteed rights which go to the very foundation of our government, as set forth in Article II, Bill of Rights, Constitution of the State of Colorado:

'In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded, we declare:

* * *

* * *

'Section 21. SUSPENSION OF HABEAS CORPUS.--The privilege of the writ of habeas corpus shall never be suspended, unless when in case of rebellion or invasion, the public safety may require it.'

as implemented by the General Assembly, CRS '53:

'65-1-1. PETITION FOR WRIT--CRIMINAL CASES.--If any person shall be committed or detained for any criminal or supposed criminal matter, it shall be lawful for him to apply to the supreme or district courts, in term time, or any judge thereof in vacation, for a writ of habeas corpus, which application shall be in writing, and signed by the prisoner or some person on his behalf, setting forth the facts concerning his imprisonment, and in whose custody he is detained, and shall be accompanied by a copy of the warrant of commitment, or an affidavit that the said copy has been demanded of the person in whose custody the prisoner is detained, and by him refused or neglected to be given. * * *; which said writ, if issued by the court, shall be under the seal of the court, if by a judge, under the hand of a judge, and shall be directed to the person in whose custody the prisoner is detained, and made returnable forthwith.

* * *

* * *

'65-1-3. HEARING--PLEADINGS--DISCHARGE.--Upon the return of the writ of habeas corpus a day shall be set for the hearing of the cause of imprisonment or detainer, not exceeding five days thereafter, unless the prisoner shall request a longer time. The prisoner may deny any of the material facts set forth in the return, or may allege any fact to show either that the imprisonment or detention is unlawful, or that he is then entitled to his discharge; which allegations or denials shall be made on oath. The return may be amended by leave of the court, before or after the same is filed, as also may all suggestions made against it, that thereby all material facts may be ascertained. The court or judge shall proceed in a summary way to settle the facts by hearing the testimony and arguments as well of all parties interested civilly, if any there be, as of the prisoner and the person who holds him in custody, and shall dispose of the prisoner as the case may require.

'If it appear that the prisoner is in custody by virtue of process from any court legally constituted, he can be discharged only for some of the following causes:

'(1) Where the court has exceeded the limit of its jurisdiction, either as to the matter, place, sum or person.' (Emphasis supplied).

Here the trial court did not 'dispose of the prisoner as the case may require,' but went into other matters not properly before the court and erroneously decided the one and only issue that was properly before it.

The trial court correctly determined that at the time of his pronouncement, Tinsley had no authority to restrain Stilley, and that the mittimus, Tinsley's purported authority, was void. Having so decided, the trial judge had only one remaining duty to perform in the case then before him--order Stilley released from the custody and restraint of Tinsley.

This opinion might well end here. However, in view of lack of consistency in prior decisions of this court and an apparent lack of clear and definite pronouncements of this court as to proper procedures to be followed in frequently recurring situations such as we have here and because of the great public concern in such problems, we, contrary to our usual procedures and by way of dictum, express our present views on several matters that are or have been the subject of much discussion.

First, we hold that the constitutional and statutory provisions governing habeas corpus mean what they say, and cannot be ignored or minimized or rendered ineffective by the courts, or at all.

In this case all agreed and the trial court found that Stilley was being held in custody by Tinsley without any right or authority. So holding, the court should have directed his...