Summers v. Warden of Nev. State Prison, 5447

• Decision Date: 06 May 1968
• Docket Number: No. 5447,5447
• Citation: 440 P.2d 388,84 Nev. 326
• Parties: Jack Elmer SUMMERS, Appellant, v. WARDEN OF NEVADA STATE PRISON, Respondent.
• Court: Nevada Supreme Court

Page 388

440 P.2d 388

84 Nev. 326

Jack Elmer SUMMERS, Appellant, v. WARDEN OF NEVADA STATE PRISON, Respondent.

No. 5447.

Supreme Court of Nevada.

May 6, 1968.

Manoukian & Manoukian, Zephyr Cove, for appellant.

[84 Nev. 327] Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Dist. Atty., Virgil D. Dutt, Deputy Dist. Atty., Reno, for respondent.

OPINION

THOMPSON, Chief Justice.

The issue presented by this appeal from a denial of the post-conviction application of Jack Elmer Summers for a writ of habeas corpus is whether the sense of justice implicit in the constitutional demands of equal protection and due process requires that there be credited against his present sentence for rape the time which he had served under a prior void conviction based upon the same acts. For reasons hereafter expressed we hold that he is entitled to such credit, reverse the district court, and order his release from prison.

On May 14, 1957, Summers was charged with the crime of rape accompanied by acts of extreme violence with great bodily injury to the victim. Without counsel, he executed a waiver of preliminary examination, pled guilty to the charge, and was sentenced to imprisonment for not less than 20 years nor more than the term of his natural life. On May 15, 1957, he was delivered to the Nevada State Prison to serve that sentence.

On July 8, 1966, with the asistance of counsel, Summers was granted relief by the Federal District Court on the ground that his constitutional right to the assistance of counsel at arraignment and plea in the state court had been denied, since the waiver of his right to counsel was not shown to have been made in a manner consistent with due process. Thereafter, he was rearraigned in the state court on an amended information charging forcible rape, but omitting an allegation of extreme violence with great bodily injury. He entered a plea of guilty, and was sentenced to the Nevada State Prison for not less than five nor more than ten years. The second conviction was based upon the same facts that supported the earlier one. The record shows that at the time the court below ruled on the instant application Summers had been confined in the Nevada State Prison for more than ten years since his 1957 conviction, not counting statutory time credits. Accordingly, he asserts that he has completed the maximum sentence directed by the second, valid conviction and is entitled to immediate release. Of course, it is apparent that if he is entitled to credit for time served under the void conviction for rape with violence, he has more than fulfilled the term of the sentence under the subsequent conviction for rape, and is being illegally detained in prison.

1. When Summers was brought before the state court in 1966 to plead to the amended information, the statute authorized a sentence of 'not less than 5 years and which may extend to life.' NRS 200.360(1). ¹ The court imposed a sentence of not less than five nor more than ten years. The record is silent as to why the court fixed the maximum term of imprisonment at ten years. Where the record to show that its reason for doing so was to accord Summers credit for time served under the earlier void conviction, the constitutional issue now before us would not be reached since, in such case, credit would have been given for time served and the sentence would be within limits authorized by the statute. This, however, is not the case before us. Here, the record does not reflect that the court gave credit for time served under the eariler void conviction. We may not conjecture about the undisclosed thoughts of the sentencing judge when he pronounced sentence. Thus, it is evident that constitutional standards are involved.

2. The state contends that it is constitutionally permissible to deny credit in these circumstances. Newman v. Rodriquez, 375 F.2d 712 (10 Cir. 1967). The contention centers mainly on the premise that penalty is a legislative matter, and since the Nevada Legislature has not allowed for credit, none may be given. When the sentences in this case were imposed, NRS 176.410(3) provided that 'the term of imprisonment * * * shall begin on the date of sentence of the prisoner by the court,' which may be read to suggest that the giving of credit is precluded. Meyers v. Hunter, 160 F.2d 344 (10 Cir. 1947). ² This argument was presented to the United States District Court for the District of Nevada and rejected. Gray v. Hocker, C.C., 268 F.Supp. 1004 (1967). That court held NRS 176.410(3) unconstitutional as applied to the petitioner in that case, since to apply the statute literally would violate Equal Protection and Due Process. We agree with the reasoning of Gray v. Hocker, supra, and with the consonant expressions of Lewis v. Commonwealth, 329 Mass. 445, 108 N.E.2d 922 (1952); Hill v. Holman, D.C., 255 F.Supp. 924 (1966); Patton v. State of North Carolina, D.C., 256 F.Supp. 225 (1966).

3. The Fourteenth Amendment commands that: '* * * nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' Each command would be violated were we to ignore reality and treat the petitioner as though he had never been in prison pursuant to the first void conviction--to say that since he should not have been imprisoned as he was, he was not imprisoned at all. The Due Process clause of the Nevada Constitution (art. 1, § 8) is equally offended.

Due process forbids action which is fundamentally unfair and shocking to the universal sense of justice. In Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), Justice Cardozo wrote: 'Fundamental too in the concept of due process, and so in that of liberty, is the thought that condemnation shall be rendered only after trial. (Citations.) The hearing, moreover, must be a real one, not a sham or a pretense.' Id. at 327, 58 S.Ct. at 153. A necessary corollary of that statement is that due process precludes imprisonment upon a constitutionally infirm conviction, and demands correction when such occurs. The conviction is corrected by setting it aside, and adjustment is made for the illegal imprisonment by allowing credit therefor against a later sentence based upon the same facts. We believe that any other result would brutalize legitimate social interests.

The court in Gray v. Hocker, supra, further noted that NRS 176.410(3) applies inflexibly and without discrimination to all convicted defendants. The statute does not distinguish between those who successfully invoke post-conviction remedies as opposed to those whose efforts are unsuccessful or who make no effort. The failure to so distinguish 'denies the equal protection of the laws to him who successfully asserts a post-conviction remedy while serving the initial sentence and is thereafter resentenced for the same offense or acts for which sentence was originally imposed.' Id. 268 F.Supp. at 1008. We agree, as well, with that observation.

For the reasons expressed the ruling below is reversed, the petitioner's application for habeas corpus is granted, and it is ordered that he be released from prison.

ZENOFF, BATJER and MOWBRAY, JJ., concur.

COLLINS, Justice (dissenting):

This is a case in which some relief may be justified. But I think that relief has already been accorded by the lower court and should judicially restrain us from establishing another...