Zullo, In re

• Decision Date: 26 July 1995
• Citation: 420 Mass. 872,653 N.E.2d 150
• Parties: In re John N. ZULLO, Petitioner. Worcester
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 150

653 N.E.2d 150

420 Mass. 872

In re John N. ZULLO, Petitioner.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued April 5, 1995.

Decided July 26, 1995.

William J. Meade, Asst. Atty. Gen., for respondent.

James R. Pingeon, Boston, for petitioner.

Before LIACOS, C.J., and WILKINS, ABRAMS and O'CONNOR, JJ.

WILKINS, Justice.

In 1979, the petitioner John N. Zullo, on parole from his Massachusetts sentence for armed robbery, violated a condition of his parole by leaving the State without permission. In 1992, Zullo was arrested in Texas on a parole revocation warrant and transferred to Massachusetts where, after revocation of his parole, he has been serving the balance of his sentence.

Zullo filed a petition for a writ of habeas corpus challenging the Commonwealth's right to require him to serve the balance of his Massachusetts sentence. A judge of the Superior Court ordered that Zullo's petition be dismissed, concluding that the undisputed documentary record showed no basis for relieving Zullo from serving the balance of his Massachusetts sentence. On Zullo's appeal, the Appeals Court decided otherwise, holding that, in the circumstances, the Massachusetts Parole Board (board) had impliedly waived jurisdiction over Zullo. In re Zullo, 37 Mass.App.Ct. 371, 375-376, 639 N.E.2d 1110 (1994). We granted the application for further appellate review filed by the respondent, the superintendent of the Massachusetts Correctional Institution (M.C.I.), Gardner. The appeal is properly here on further review of the Superior Court order.

This court has not had occasion to consider the standard that should be applied in determining whether the belated service of a parole revocation warrant results in the board's loss of the authority to seek revocation of parole. We granted the application for further appellate review to consider that question and to consider aspects of the Appeals Court opinion that the respondent challenges.

The essential facts are as follows. In May, 1975, Zullo pleaded guilty to armed robbery in Massachusetts and was sentenced to serve a ten-year sentence at M.C.I., Concord. In January, 1979, while on parole from that sentence, Zullo left the Commonwealth without reporting a change of address to his parole officer, an admitted violation of the terms of his parole. A parole revocation warrant was issued promptly. Authorities in Oregon learned of that warrant in March, 1979, when police in Beaverton, Oregon, began investigating Zullo in connection with a burglary. In March, 1980, Zullo was charged with burglary, and the next month Oregon officials notified the board that they were holding Zullo. The board then informed Oregon authorities that it lacked funds "to extradite [the] subject." Zullo was indicted for the Oregon burglary in April, 1980. He fled to Colorado before trial, where he was arrested on a fugitive from justice warrant and returned to Oregon. Before returning Zullo to Oregon, Colorado authorities had advised the board that they had Zullo in their possession, and the board again had declined to serve the parole revocation warrant on him. Zullo pleaded guilty to the Oregon charge and was imprisoned there until he was paroled in February, 1983. The board did not lodge a detainer against Zullo while he was imprisoned in Oregon, nor did it inquire concerning the length of Zullo's Oregon sentence. After Zullo had been convicted in Oregon but before he was sentenced, someone in Oregon advised the board that Oregon would "get back to us [the board] on sentence length." The record does not indicate that the board heard from Oregon authorities again. At no time did the board attempt to serve Zullo while he was on parole. Oregon released Zullo from his parole in February, 1988. Zullo was returned to Massachusetts, as indicated above, following his 1991 arrest in Texas on misdemeanor charges. We shall assume, as did the Appeals Court, that Zullo was aware that Massachusetts authorities knew where he was, but decided not to serve a parole revocation warrant on him after his arrest and sentence in Oregon.

No statute governs the issue before us. Circumstances concerning the issuance and execution of a parole revocation or revocation warrant are stated in G.L. c. 127, § 149 (1994 ed.). If a parole violator is serving a sentence or sentences elsewhere when such a warrant is served, service is not effective until "the expiration of any additional sentences by parole or otherwise." The Appeals Court seems to have concluded that service of a parole revocation warrant on Zullo would not have been effective until Zullo was discharged from his Oregon parole in 1988. In our view, the expiration of a sentence "by parole" implicitly refers to the end of imprisonment by release on parole. At such a point in 1983, Oregon would have held Zullo on any Massachusetts warrant on file, and the board would have had to decide whether to return Zullo to Massachusetts or let him go. In any event, the board could have served the parole revocation warrant at any time after Zullo left the Commonwealth. In the absence of statutory guidance as to when the board should have served the parole revocation warrant, we turn to general principles.

Opinions in other jurisdictions that have considered challenges to the enforcement of parole violations against persons who failed to report their changes of address have focused largely on the question whether delay in enforcement of the parole revocation warrant was unreasonable. See, e.g., United States v. Hill, 719 F.2d 1402, 1405 (9th Cir.1983) ("a warrant for arrest based on a probation or parole violation should be executed within a reasonable time after issuance"); Simon v. Moseley, 452 F.2d 306, 309 (10th Cir.1971) (same); Greene v. Michigan Dep't of Corrections, 315 F.2d 546, 547 (6th Cir.1963) (parole authorities must proceed with reasonable diligence to execute warrant). The weight of authority is that, if the whereabouts of the parole violator was known or was readily ascertainable and an "unreasonable" amount of time elapsed during which the State authorities took no action to enforce the parole violation, the State has waived its right to execute the balance of the parolee's prison sentence and the State...