243 N.E.2d 115 | Ohio Ct. App. | 1969
On January 22, 1956, in case number 3847 in the Common Pleas Court of Marion County, Duane C. Packer, defendant in that case and appellant herein, following a plea of guilty while represented by counsel, was convicted and sentenced for not less than 20 years on a count of abducting for the purpose of extortion, for from 5 to 30 years on a count of conspiracy to abduct, and for life on a count of malicious entry of a bank, the sentences to be served concurrently. On February 10, 1956, Packer was conveyed to the penitentiary to begin serving these sentences. Thereafter, on his appeal from the conviction, it was determined in case number 1131 in this court, on the authority of State v. Cimpritz,
On May 11, 1962, appellant was again indicted for malicious entry of a bank, the indictment being for the same criminal act on which the invalid count had been based, and was convicted after a full trial with the assistance *173 of appointed counsel. On July 26, 1962, in case number 4332 in the Common Pleas Court of Marion County, that court sentenced him to life imprisonment, but provided that the sentence was to be served consecutively with the sentences he was still serving from his 1956 conviction. No appeal as of right was filed from the 1962 conviction.
Thereafter, appellant sought post-conviction relief from the 1962 conviction on the ground that the constitutional inhibition against double jeopardy prevented him from being tried a second time for the same offense. Post-conviction relief was denied by the trial court and on appeal therefrom in case number 1195 in this court, the judgment of the trial court was affirmed on June 23, 1967, on the authority of State v. Perry,
Subsequently, appellant filed motion for leave to appeal from his 1962 conviction on the grounds that he was not, as an indigent, provided with counsel to perfect an appeal as of right therefrom, nor was he advised, nor did he know, of his rights to do so. This motion was granted, and appellant is now before this court, with counsel.
Having abandoned all other assignments of error respecting his 1962 conviction, appellant assigns as error that "the trial court's failure to give appellant credit for time served under the 1956 conviction operates to deny the appellant due process and equal protection of the laws as provided by the
Appellant's basic argument is not that the maximum sentence under the 1962 conviction is any longer or more severe than was the sentence for malicious entry of a bank under the 1956 conviction, because the life sentence under the latter must, of necessity, be equivalent to the life sentence under the former, but he argues, instead, that the latter sentence is more severe and constitutionally improper because, in its application and effect on his eligibility for parole, it deprives him of the time already served on the *174 count of malicious entry of a bank under the 1956 conviction. Appellee's basic arguments are that parole is not a matter of right, but is within the sole discretion of the adult parole authority over which the courts have no control; that the trial court had the authority to administer a consecutive sentence; and that the time already served by the appellant was being served on the valid counts of the 1956 conviction.
We observe at the outset that the phrase "eligibility for parole," as used by the appellant and as appearing in many of the parole statutes, is not an accurate phrase. In view of the fact that there is no right to be paroled, and that the granting of parole is within the discretion of the adult parole authority, the right, if any, with which we are here concerned, is the right of eligibility to be considered for parole.
It should also be observed that while this court set aside the original judgment of conviction and sentence for malicious entry of a bank as being void on the authority of State v.Cimpritz,
Under the provisions of Sections
Section
Section
Section
"If he is sentenced to imprisonment in the penitentiary, he shall be returned thereto by the sheriff and his new term of imprisonment shall, at the direction of the court, begin at the expiration of the term for which he was in prison at the time of his removal or run concurrently with such term, except as otherwise provided in Section
These statutes relate only to the actual running of sentences and have no relation to eligibility for consideration for parole, which is now determined, in the circumstances of this case, by the applicable provisions of Sections
"A person serving several indeterminate sentences consecutively shall become eligible for parole upon the expiration of the aggregate of the minimum terms of his several sentences * * *. Where the aggregate of the minimum terms is longer than fifteen years, eligibility for parole *176
shall be determined in accordance with Section
"(A) A court specifies that any sentence begin at the completion or expiration of another sentence;
"* * *."
Section
"A prisoner serving a sentence of imprisonment for life for a crime other than treason or murder in the first degree, or a prisoner sentenced for a minimum term or terms, whether consecutive or otherwise, of imprisonment longer than fifteen years, shall become eligible for parole at the expiration of ten full years' imprisonment.
"* * *."
By the application and operation of Sections
What constitutional provision would then be violated by the trial court by not providing, in imposing the 1962 life sentence, that the time already served by the appellant on the 1956 life sentence should be credited on the 1962 life sentence? By statutory fiat the minimum sentence for the crime for which appellant was convicted in 1962 was life, and by operation of God and nature the same was also the maximum sentence for that crime. Six years and two months credit on a life sentence could in no way shorten it, nor would the failure to give such credit in any manner lengthen it. We are fully aware of the line of conflicting federal decisions pertaining to the effect of the failure to give credit on a valid sentence for a term of years for time served for the same criminal act under a previous sentence which has been set aside. See, for example, Marano v.United States (C.C.A. 1, 1967),
Notwithstanding that there was no statutory or constitutional requirement that the trial court give appellant credit for the time already served this would not preclude *178
the Adult Parole Authority, when exercising its discretion in determining whether appellant should be paroled, to take into consideration the time served on the sentence which was set aside. We note that the Legislature has provided by Section
We find no error prejudicial to the appellant in the particulars assigned and argued.
Judgment affirmed.
COLE and YOUNGER, JJ., concur.
*1