United States v. Ragen

• Decision Date: 28 February 1950
• Docket Number: No. 9913.,9913.
• Parties: UNITED STATES ex rel. MASCIO v. RAGEN, Warden
• Court: U.S. Court of Appeals — Seventh Circuit

179 F.2d 930 (1950)

UNITED STATES ex rel. MASCIO v. RAGEN, Warden

No. 9913.

United States Court of Appeals Seventh Circuit.

February 8, 1950.

Rehearing Denied February 28, 1950.

Ivan A. Elliott, Attorney General, James C. Murray, William C. Wines, Assistants Attorney General, (Raymond S. Sarnow, Assistant Attorney General, of counsel), for appellant.

Thomas F. Reilly, Carl G. Pretzel, Chicago, Ill., for appellee.

Before KERNER, FINNEGAN, and SWAIM, Circuit Judges.

KERNER, Circuit Judge.

Sam Mascio, petitioner, was a prisoner in the Stateville Branch of the Illinois State Penitentiary serving sentences pursuant to judgments of conviction rendered by the Criminal Court of Cook County, Illinois. He petitioned the District Court for a writ of habeas corpus. In his petition he averred that he was and is being deprived of his liberty without due process of law in violation of the laws of the State of Illinois and the Constitution of the United States. The District Court held that petitioner was being unlawfully held in the custody of the respondent and discharged the prisoner from incarceration. To reverse the judgment, respondent, warden of the penitentiary, appeals.

The facts are not in dispute. On March 20, 1941, Mascio, on his plea of guilty in case No. 41-235, was convicted of burglary by the Criminal Court of Cook County, Illinois, and placed on probation for one year. March 19, 1942, the probation was extended for another year, but during the year he was, in three separate robbery cases, indicted by a grand jury in the Criminal Court of Cook County. The indictment in each case included a habitual criminal count. November 10, 1942, in these three cases, Mascio was adjudged guilty and convicted of unarmed robbery as charged in each of the indictments, and he was separately sentenced in each case for a term of 20 years, the sentences to run concurrently. Paragraph 501, c. 38 Ill.Rev. Stat.1947, provides: "* * * Every person guilty of robbery shall be imprisoned in the penitentiary not less than one year nor more than twenty years; or if he is armed with a dangerous weapon, * * * he shall be imprisoned * * * for any term of years not less than one year or for life." On the day that Mascio was sentenced in the robbery cases, the court revoked the probation in case No. 41-235, and Mascio was sentenced, as provided by Paragraph 84, c. 38 of the Illinois Statutes, to the Illinois State Penitentiary for the crime of burglary for a term of years, not less than one nor more than life, the sentence to run concurrently with the sentences in the three robbery cases.

In his petition for the habeas corpus writ, Mascio averred, and in the District Court contended, that since he had not been imprisoned in the penitentiary in the burglary case, the sentences in the three robbery cases for a flat term of 20 years were illegal. He argued that had he been sentenced for a period of from 1 to 20 years in each of the robbery cases, he would have been eligible for parole at the expiration of one year, and hence he was denied due process. The trial judge sustained this contention.

In this court Mascio has renewed the contention made in the District Court. He insists the judgments of the Criminal Court in the robbery cases were void.

It is true that in People v. Perkins, 395 Ill. 553, 70 N.E.2d 622, the court held that a sentence as a habitual criminal is erroneous unless the conviction was predicated upon the fact that the prisoner had actually served time in the penitentiary on a prior conviction, nevertheless, in considering Mascio's contention it is well to remember that there is a distinction between the effect of a void judgment and one which, though erroneous, yet is valid. In determining whether or not an excessive sentence will render a judgment of conviction void so as to entitle a defendant to a release in a habeas corpus proceeding, the test is whether or not the sentence is of a different character from that authorized by law to be imposed for the crime of which the accused has been found guilty.

In our case the Criminal Court had jurisdiction of the offense and of the person of Mascio, and under Paragraph 501, c. 38 of the Ill.Rev.Stat.1947, the court had authority to impose upon Mascio a sentence of imprisonment. To be sure, the court was not empowered to sentence him to a term of 20 years, but the...