JACK ELMER SUMMERS, Aрpellant, v. WARDEN, NEVADA STATE PRISON, Respondent.
No. 5447
In the Supreme Court of the State of Nevada
May 6, 1968
440 P.2d 388
Manoukian and Manoukian, of Zephyr Cove, for Appellant. Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Virgil D. Dutt, Deputy District Attorney, Washoe County, for Respondent.
By the Court, THOMPSON, C. J.:
The issue presented by this appeal from a denial of the post-conviction application of Jack Elmer Summers for a writ of habeas corpus, is whether the sense of justice implicit in the constitutional demands of equal protection and due рrocess requires that there be credited against his present sentence for rape the time which he had served under a prior void conviction based upon the same acts. For reasons hereafter expressed we hold that he is entitled to such credit, reverse the district court, and order his release from prison.
On May 14, 1957, Summers was charged with the crime of rape accompanied by acts of extreme violence with great bodily injury to the victim. Without counsel, he executed a waiver of preliminary examination, pled guilty to the charge, and was sentenced to imprisonment for not less than 20 years nor more than the term of his natural life. On May 15, 1957, he was delivered to the Nevada State Prison to serve that sentence.
On July 8, 1966, with the assistance of counsel, Summers was granted relief by the United States District Court on the ground that his constitutional right to the assistance of counsel at arraignment and plea in the state court had been denied, since the waiver of his right to counsel was not shown to have been made in a manner consistent with due process. Thereafter, he was rearraigned in the state court on an amended information charging forсible rape, but omitting an allegation of
1. When Summers was brought before the state court in 1966 to plead to the amended information, the statute authorized a sentence of “not less than 5 years and which may extend to life.”
2. The state contends that it is constitutionally permissible to deny credit in these circumstances. Newman v. Rodriguez, 375 F.2d 712 (10 Cir. 1967). The contention centers mainly on the premise that рenalty is a legislative matter, and since the Nevada Legislature has not allowed for credit, none may be given. When the sentences in this case were imposed,
3. The
Due process forbids action which is fundamentаlly unfair and shocking to the universal sense of justice. In Palko v. Connecticut, 302 U.S. 319 (1937), Justice Cardozo wrote: “Fundamental too in the concept of due process, and so in that of liberty, is the thought that condemnation shall be rendered only after trial. [Citations.] The hеaring, moreover, must be a real one, not a sham or a pretense.” Id. at 327. A necessary corollary of that statement is that due process precludes imprisonment upon a constitutionally infirm conviction, and demands corrеction when such occurs. The conviction is corrected by setting it aside, and adjustment is made for the illegal imprisonment by allowing credit therefor against a later sentence based upon the same facts. We believe that аny other result would brutalize legitimate social interests.
The court in Gray v. Hocker, supra, further noted that
For the reasons expressed the ruling below is reversed, the petitioner‘s application for habeas сorpus is granted, and it is ordered that he be released from prison.
ZENOFF, BATJER, and MOWBRAY, JJ., concur.
COLLINS, J., dissenting:
This is a case in which some relief may be justified. But I think that relief has already been accorded by the lower court and should judicially restrain us from establishing another cоnstitutional precedent.
When petitioner pleaded guilty to the lesser crime of forcible rape, without extreme violence or great bodily injury, arising out of the same facts which supported the earlier conviction оf rape with extreme violence and great bodily injury he received a substantially and markedly lesser sentence than the court could have given him. He could have been sentenced to a term of not less than 5 years nor morе than life. True the record does not reflect the reasons why the trial court exercised its discretion in fixing a maximum of 10 years instead of life. But the reason, though not stated, leaps out of the record with clarity. The maximum sentence of less than life reflected a concession made by the trial judge for the time served by petitioner under the previous void sentence. Such conclusion is a fair one in light of the entire record before us. To put it another way hаd the lower court fixed the maximum sentence of life on the second conviction, instead of 10 years, then perhaps the relief accorded here could be constitutionally justified.
In such respect this case differs materially from Gray v. Hocker, 268 F.Supp. 1004 (1967) where the maximum time under the second sentence was previously served under the void first sentence.
This, like most problems arising under the criminal law, is not a black or white situation. The problem, with its constitutional overtones, is one for the legislature after we call attention to it. For example, how much of the previous time served should be credited on the new sentence? All of it or only a part? Should only straight time be credited or, in addition work time, blood donation time and good conduct time as well? Suppose
In declaring unconstitutional
Sadly again, this cоurt seems concerned only with petitioners rights against society and that unless he is granted full credit for time served under the void judgment “legitimate social interests would be brutalized.” I think we should be equally as concerned in protecting society from petitioners brutality and the young girl he offended by forcibly raping her.
He has offended society, not the reverse. Society has already accorded him valuable relief in setting aside his first conviction (on a technicality—laсk of counsel on the first conviction) which in no way lessened the fact of his crime against society. He pleaded guilty again to a lesser degree of the same crime and even then received further consideration from thе court when it reduced the maximum sentence from life to 10 years.
I dissent.