Varner, In re

• Decision Date: 08 May 1957
• Docket Number: No. 35095,35095
• Citation: 142 N.E.2d 846,166 Ohio St. 340
• Parties: , 2 O.O.2d 249 In re VARNER.
• Court: Ohio Supreme Court

Page 340

166 Ohio St. 340

142 N.E.2d 846, 2 O.O.2d 249

In re VARNER.

No. 35095.

Supreme Court of Ohio.

May 8, 1957.

Syllabus by the Court

The action of the Pardon and Parole Commission, in declaring a paroled convict to be a parole violator before the expiration of the maximum period of his sentence and before his final release by that commission or pursuant to executive clemency, is not reviewable in a habeas corpus proceeding, even though such convict has been returned to the penitentiary or to the reformatory because of such action.

In 1953, petitioner, having plead guilty to an indictment for attempted burglary which is a felony, was sentenced to the Ohio State Reformatory for a term of not less than one nor more than 15 years.

In his petition for a writ of habeas corpus filed in the Court of Appeals for Summit County on November 5, 1956, he alleges that he 'was paroled * * * by the Pardon and Parole Commission in September of 1955 upon certain conditions determined by said * * * commission'; that about June 1, 1956, 'he was arrested * * * and * * * thereafter * * * indicted by the Grand Jury of Summit County' for grand larceny; that during the trial on that charge the court on October 26, 1956, dismissed the proceeding and ordered that defendant 'be discharged from further custody'; that 'a parole officer of the Pardon and Parole Commission * * * filed with' the sheriff 'a form signed by him as parole officer, such form being captioned 'Order to Hold' and dated June 1, 1956, directed to Akron police, and states that in accordance with Section 2965.21 of the General Code of Ohio [sic], please commit and hold in custody' the petitioner 'until released by the undersigned'; and 'that he has not violated any of said conditions of his parole and that no determination or judgment of said Pardon and Parole Commission was made that he violated the conditions of his parole from the time of his arrest to the time of said * * * order of the Court of Common Pleas * * * dismissing the case against him and ordering that he be discharged from further custody, and that any determination or judgment of said * * * commission that * * * petitioner * * * violated the conditions of his parole would be arbitrary, fraudulent, false, capricious and an abuse of discretion, and that any such judgment or determination of said Pardon and Parole Commission would be beyond its statutory powers and an unlawful denial of the legal and constitutional rights of * * * petitioner, and that petitioner has not been given any notice or knowledge of any alleged violation of any of the conditions of his parole, and has been denied and has not been given any hearing concerning any alleged violations of the conditions of his parole.'

The Pardon and Parole Commission 'declared' petitioner to be 'a parole violator effective November 8, 1956,' and ordered his return to the Ohio State Reformatory.

The Court of Appeals on January 18, 1957, found that the petitioner was 'lawfully imprisoned by the * * * sheriff * * * and that the Pardon and Parole Commission' was 'not properly before' the court and thereupon dismissed the petition as to the commission and ordered that petitioner be remanded to the custody of the sheriff.

It is conceded that the sheriff, at the request of the commission, has heretofore returned petitioner to the Ohio State Reformatory.

The cause is now before this court on appeal from the foregoing judgment of the Court of Appeals.

James M. Hinton and Albert J. Landi, Akron, for appellant-petitioner.

William Saxbe, Atty. Gen., James F. DeLeone, Joseph A. Marchese, Columbus, for appellee State.

TAFT, Judge.

Because of our reasons for this decision, it is not necessary to decide some of the questions raised by the parties. For example, it is not necessary to determine whether the Court of Appeals erred in dismissing the action as against the Pardon and Parole Commission. We will assume, without deciding, that petitioner is correct in his contention that, since the petitioner was being held in Summit County by the sheriff of Summit County who was served in that county, the Court of Appeals for Summit County did secure personal jurisdiction over the commission by service on it outside Summit County. See Glass v. McCullough Transfer Co., 159 Ohio St. 505, 115 N.E.2d 78. But cf. State ex rel. Barber v. Rhodes, 165 Ohio St. 414, 136 N.E.2d 60. It may reasonably be argued that, if the Court of Appeals secured personal jurisdiction over the commission, then even the commission's proper removal of the petitioner from Summit County to the reformatory at Mansfield after the dismissal of the action by the Court of Appeals would not result in the case becoming moot when subsequently before this court on appeal from that order of dismissal.

As we view it, the decisive question of law to be determined is whether the action of the Pardon and Parole Commission, in declaring a paroled convict to be a parole violator before the expiration of the maximum period of his sentence and before his final release by the commission, is reviewable in a habeas corpus proceeding, even though such convict is returned to the reformatory or to the penitentiary because of such action.

Outside Ohio, the authorities on this question are apparently in conflict. Annotation, 29 A.L.R.2d 1074.

Whether such right of review should be recognized in Ohio will depend to a substantial extent upon the interpretation of our applicable statutes. ¹ In recognizing the legislative power 'to dispense with notice or a hearing as part of the procedure of probation' on the revocation of a suspension of a sentence, it was said by Mr. Justice Cardozo in the opinion of the court in Escoe v. Zerbst, 295 U.S. 490, 492, 55 S.Ct. 818, 819, 79 L.Ed. 1566:

'Probation or suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions in respect of its duration as Congress may impose.'

In our opinion, the same observation may be made with respect to a parole. Thus in Fuller v. State, 122 Ala. 32, 26 So. 146, 148, 45 L.R.A. 502, 82 Am.St.Rep. 17, it was said with respect to a contention that a prisoner had been deprived of his constitutional rights by a summary order directing rearrest and return to custody:

'This position takes no account of the fact that the person being dealt with is a convict, that he has already been seized in a constitutional way, been confronted by his accusers and the witnesses against him, been tried by the jury of his peers secured to him by the Constitution and by them convicted of crime, and been sentenced to punishment therefor. In respect of that crime and his attitude before the law after conviction of it he is not a citizen, nor entitled to invoke the organic safeguards which hedge about the citizen's liberty, but he is a felon, at large by the mere grace of the executive * * *.'

See also Ughbanks v. Armstrong, 208 U.S. 481, 28 S.Ct. 372, 52 L.Ed. 582.

A strained construction of some of the language of our statutes relating to parole might support an inference of a legislative intent that there is to be a hearing before a prisoner on parole is declared to be a parole violator, or at least before the Pardon and Parole Commission determines that such violator should be again imprisoned. See Section 2965.21, Revised Code. In our opinion, however, no such legislative intent should be recognized unless it has been clearly expressed. In many instances, potential witnesses justifiably are fearful of testifying publicly against a paroled convict. Therefore, in order to determine whether or not the protection of society from such a convict requires that he be declared a parole violator and again imprisoned, it may be necessary for the commission to rely upon secret investigations. State ex rel. McQueen, v. Horton, 31 Ala.App. 71, 14 So.2d 557, affirmed 244 Ala. 594, 14 So.2d 561. Also, if the action of the commission in determining that a paroled convict has been a parole violator or that such a violator should be again imprisoned could not be taken until after a judicial inquiry, the resulting burdens of administration on the commission and its desire to protect the public would undoubtedly discourage the commission from granting many paroles that it otherwise would grant. See Owen v. Smith, 89 Neb. 596, 131 N.W. 914. Such a result would defeat one of the expressed purposes of the General Assembly 'to assist' convicts 'to become law-abiding members of society.' Section 2965.20, Revised Code. Furthermore, as stated in the opinion in In re Anderson, 191 Or. 409, 428, 229 P.2d 633, 641, rehearing denied 230 P.2d 770, 29 A.L.R.2d 1051:

'The modern release procedures whereby a paroled prisoner remains, not only in the constructive custody of a parole board or officer, but also under the guidance and observation of trained officials, are in marked contrast to the older procedures whereby a court or governor issued a parole with little real opportunity for supervising the conduct of the prisoner. As the opportunities for intimate knowledge concerning the character and conduct of a parolee increase, the probability of informed action in granting or revoking the parole likewise increases and the necessity of the judicial type of hearing accordingly decreases.'

There are statutory expressions which clearly indicate a legislative intent that a convict should be on parole only where his freedom would be consistent with the protection, welfare and security of society. Section 2965.09, Revised Code. It is apparent that the General Assembly expressly regarded such protection, welfare and security as of far more importance than even the temporary freedom on parole of any convicted felon.

There is no express statutory requirement of any hearing before the commission declares a parolee to be a violator, and, where he is a violator, he may be arrested forthwith. Also, there is no apparent limitation provided with...