22 Ohio St. 2d 29 | Ohio | 1970
This action presents a single question for determination: is a declared parole violator, while
R. 0. 2967.15, supra, in pertinent part, provides that, in the event a parolee is declared a parole violator, “The time from the date of the declared violation of his pardon or parole to the date he becomes available for return to the institution shall not be counted as a part of time or sentence served.” Consequently, if petitioner was “available for return” he is entitled to have the period of his incarceration in the Montgomery County Jail during which he was a declared parole violator credited to his time served.
This court has previously had several opportunities to consider similar questions. Smouse v. Perini (1968), 16 Ohio St. 2d 13; Whitaker v. Maxwell (1966), 6 Ohio St. 2d 202; Carter v. Maxwell (1964), 177 Ohio St. 35; Cline v. Haskins (1964), 175 Ohio St. 480; Bush v. Maxwell (1963), 175 Ohio St. 207. However, none of these cases involve the precise point in issue here.
In Whitaker, Carter and CUne, the parole violators were incarcerated in other jurisdictions. The violators sought to have the time from their releases in other states to the time of their return to Ohio credited to their time served. This court disallowed the credit holding that Ohio has no duty to seek out parole violators.
In Smouse and Bush, parole violators were convicted and sentenced for crimes committed while on parole. They sought to have the time served on those sentences credited to the sentences from which they had been paroled. However, the court refused them credit holding that during the time served for the subsequent crimes, the parole violators were not in the custody of the Adult Parole Authority for the initial crimes. Consequently, the time so served was not served for the initial crimes.
It might be argued that the above cases establish a general rule that the Adult Parole Authority has no duty
The General Assembly chose the language “available for return to the institution” in lieu of “in custody of the Adult Parole Authority.” In the cases discussed above, the parole violators were, in fact, unavailable for return by the Adult Parole Authority. In Whitaker, Carter and Cline, supra, the parole violators were unavailable to the Authority without the state first taking action to pursue the violators beyond the borders of the state and have them returned to the state. In Smouse and Bush, supra, the parole violators were unavailable because they were serving sentences for intervening crimes.
The rule in Williams v. State, supra, is also contrary to the general disinclination of this state to permit a criminal to be incarcerated for a period of time for which he receives no credit. R. 0. 2967.191; McNary v. Green (1967), 12 Ohio St. 2d 10. In R. C. 2967.191, the General Assembly has permitted the Adult Parole Authority to reduce any sentence by the number of days the criminal was incarcerated in a county jail or state processing facility subsequent to a guilty verdict or guilty plea, but prior to the commencement of the sentence. In McNary v. Green, supra, this court held that time served under a sentence subsequently vacated must be credited to a prior existing sentence.
When no action by the state is necessary to locate or take into custody a parole violator, other than one who is incarcerated on another charge in the institution from which he was paroled, he is “available for return” within the meaning of R. C. 2967.15. That same section places
Accordingly, petitioner is entitled to the relief sought. It is, therefore, hereby ordered that the Ohio Adult Parole Authority correct its records to show that the petitioner has been given credit as time served for the period he was incarcerated in the Montgomery County Jail while a declared parole violator and affect his release accordingly.
Writ allowed.
