KLECZKA v. COMMONWEALTH, 350 Mass. 74 (1966)

213 N.E.2d 390

Supreme Judicial Court of Massachusetts. Suffolk.December 9, 1965.
January 4, 1966.

Present: WILKINS, C.J., SPALDING, WHITTEMORE, CUTTER, KIRK,
SPIEGEL, JJ.

Parole. Practice, Criminal, Sentence.

A parole was properly revoked when the parolee committed an offence subsequent to his release on parole. [76] Under G.L.c. 127, § 149, there was no error in lodging a warrant revoking a parole, without serving the warrant, in a correctional institution in which the parolee was confined for an offence committed subsequent to his release on parole. [76]

Page 75

Under G.L.c. 127, § 149, a sentence of a defendant for an offence committed while he was on parole from a sentence for an earlier offence, the term of which had not expired at the time of the later sentence, was properly imposed without reference to the earlier sentence. [76]

TWO PETITIONS for writs of error filed in the Supreme Judicial Court for the county of Suffolk on April 6, 1964.

The cases were heard by Reardon, J.

The cases were submitted on briefs.

Louis M. Nordlinger for the petitioners.

Richard W. Murphy, Special Assistant Attorney General, Robert J. Kelly, Special Assistant Attorney General, for the respondent.

CUTTER, J.

These two petitions, each for a writ of error, seek to review criminal judgments. The cases present essentially the same question, the nature of which is sufficiently indicated by stating the facts concerning Kleczka.

Kleczka on June 12, 1963, pleaded guilty to twelve charges of larceny by means of worthless checks. He had filed written waivers of indictment and of the appointment of counsel. He was sentenced to imprisonment for three to five years, all sentences to be served concurrently. The judge in imposing sentence made no reference to an earlier sentence of Kleczka in October, 1960, to a term of imprisonment for three to five years, from which he had been released on parole on December 14, 1961. He had remained at liberty until May 28, 1963, when he was arrested for the later offences. The parole board issued a parole revocation warrant on May 27, 1963. This was filed with the jail in which Kleczka was confined. No action was taken under the revocation warrant to bring about his return to prison to resume serving the unfinished 1960 sentence. In June, 1965, he was placed upon parole from the 1963 sentences to resume serving the 1960 sentence. In November, 1965, he was released upon parole both with respect to the 1960 sentence and to the 1963 sentences. Kleczka assigns as error principally that he was sentenced on June 12, 1963, on the new charges, without first having been returned to prison “under a re-instatement of the term of his original [1960] mittimus.”

Page 76

The case was heard by a single justice who ordered the 1963 judgments affirmed. The case is before us upon Kleczka’s bill of exceptions and the return of the Chief Justice of the Superior Court.[2]

1. We need not pass upon the Attorney General’s contention that the 1963 judgments against Kleczka cannot be reviewed by writ of error. The petitioners’ contentions cannot prevail even if considered on the merits.

2. Kleczka’s parole on the 1960 sentence was properly revoked when he committed the 1963 offences. There was no error in lodging the revocation warrant (without serving it) with the institutions having him in confinement either awaiting trial for the later offences or under the later sentences. See G.L.c. 127, § 149 (as amended through St. 1946, c. 424), which is set out in part in the margin.[3] The final sentence of § 149, as amended, is conclusive of these cases. See Harding v. State Bd. of Parole, 307 Mass. 217, 220-222; Zerbst v. Kidwell, 304 U.S. 359, 362-364; Woykovsky v. Chappell, 336 F.2d 927, 928 (Ct. App. D.C.), cert. den. 380 U.S. 916; Smith v. Krimsky, 209 F. Supp. 273, 274 (S.D.N.Y.). Various cases somewhat relied upon by the petitioners arise under different statutes, and involve different situations. See Zerbst v.

Page 77

Lyman, 255 Fed. 609, 610 (5th Cir.); Dickerson v. Perkins,
182 Iowa, 871, 874-875; note, 65 Harv. L. Rev. 309, 313-314. See also Ex parte Gafford, 25 Nev. 101, 103; In re Black, 162 N.C. 457, 458-459.

Exceptions overruled.