Forbes v. Haynes

BARDGETT, Judge. Habeas corpus. Petitioner is a prisoner in an institution within the Missouri Department of Corrections. He alleges his imprisonment is unlawful for the reason his term has expired. A writ was issued and a return filed thereto. The issue concerns the applicability of the mandatory consecutive sentencing provision of § 222.020, as amended 1959, to a person sen — 487 — tenced to the Missouri Department of Corrections and who commits a subsequent offense while free on bond pending appeal. Is petitioner “under sentence” while his appeal is pending and when free on bond pending appeal having never been delivered to the department of corrections? Does the 1959 amendment to § 222.020 whereby the concluding phrase of the first sentence of the act was amended by deleting the words “may be held” and inserting the words “is held” require that petitioner be “held” under sentence at the time of the commission of the subsequent offense for the section to be applicable? Our answer is “yes” to both questions. The facts are stipulated. Chronologically they are: On June 21, 1966, a jury in the Circuit Court of Clay County found petitioner guilty of tampering with an automobile and assessed his punishment at three years and on July 6, 1966, the court imposed sentence in accordance with the jury verdict. On July 8, 1966, petitioner filed notice of appeal and thereafter was released on bond pending appeal. On December 11, 1966, while petitioner was free on bond pending appeal, he committed the crime of burglary second degree and stealing and was so charged by information on January 11, 1967, in the Jackson County Circuit Court following preliminary hearing in the magistrate court, and on July 24, 1967, he was found guilty by a jury which assessed his punishment at two years on each charge. The Circuit Court of Jackson County thereafter sentenced petitioner to two years on the burglary charge and two years on the stealing charge and ordered that the two terms of two years each be served consecutively. The court was advised of the existence of the earlier sentence imposed by the Clay County Circuit Court on July 6, 1966, for tampering but no reference was made thereto in its judgment and sentence for burglary second and stealing. On May 13, 1968, the judgment of the Clay County Circuit Court was affirmed by this court, the petitioner having failed to perfect his appeal, and on March 13, 1970, the Clay County sentence was terminated by commutation of the Governor. Petitioner contends the Jackson County sentence of four years commenced to run when imposed by the court and ran concurrently with the Clay County sentence of three years. Respondent contends that under § 222.020 the Jackson County sentence was consecutive to the Clay County sentence and did not begin to run until completion of the Clay County sentence. If petitioner’s interpretation is correct, it is stipulated that he has served the Jackson County sentence (the longer of the two) and is entitled to be released from custody. In 1959 the legislature amended § 222.020. For comparison purposes, the language which was deleted by the 1959 amendment is enclosed in parentheses and the language added by the 1959 amendment is italicized in the following draft of pertinent portions of § 222.020. “The person of a convict sentenced to imprisonment in (the penitentiary is and shall be) an institution within the state department of corrections is under the protection of the law and any injury to his person, not authorized by law, is punishable in the same manner as if he were not under conviction and sentence; and if any convict (shall commit) commits any crime in (the penitentiary) an institution of the department of corrections, or in any county of this state while under sentence, the court having jurisdiction of criminal offenses in the county shall have jurisdiction of (such) the offense, and the convict may be charged, tried and convicted in like manner as other persons; and in case of conviction, the sentence of the convict shall not commence to run until the expiration of the sentence under which he (may be) is held. * * * ” Was petitioner “under sentence” at the time he committed the subsequent offense on December 11, 1966, even though he had not as yet entered any institution of the department of corrections and was free on bond pending appeal from the conviction, — 488 — judgment and sentence of the Clay County Circuit Court? The phrase “under sentence” was not altered by the 1959 amendment to § 222.020 and it has been construed by this court prior to and since 1959 that a person on parole is under sentence. State v. Hicks, Mo., 376 S.W.2d 160; State v. Todd, Mo., 433 S.W.2d 550; Aguilar v. State, Mo., 452 S.W.2d 225; State v. Campbell, Mo., 307 S.W.2d 486; Herring v. Scott, Mo., 142 S.W.2d 670. The opening words of 222.020 set forth one of the conditions requisite to its applicability, to wit, that the person be “sentenced to imprisonment in an institution within the state department of corrections”. In the instant case, this condition was met on July 6, 1966, when the Circuit Court of Clay County, after overruling petitioner’s motion for new trial, entered judgment and sentence, in accordance with the jury verdict, upon petitioner, and ordered him confined in the department of corrections of the State of Missouri for the period of three years. Then followed the orders directing the sheriff to convey the prisoner into the custody of the department of corrections without delay, there to be kept until the sentence is complied with or defendant is otherwise discharged by due course of law. This constituted the final judgment from which petitioner could take an appeal, and without which an appeal on his part would be premature. § 547.070, V.A. M.S.; Rules 27.09 and 28.03, V.A.M.R.; State v. Chase, Mo., 415 S.W.2d 731; State v. Bledsoe, Mo., 249 S.W.2d 457. At this point in time, the sheriff’s right and duty to hold the defendant because of the tampering with a motor vehicle offense is no longer founded upon the existence of the charge against defendant nor upon the jury verdict but is found in the court’s judgment and sentence of defendant to the department of corrections and the order to convey defendant to the department of corrections. Rule 28.10, V.A.M.R., provides, inter alia, for a stay of execution in cases involving a sentence of death if an appeal is taken, and a sentence of imprisonment if an appeal is taken and defendant is admitted to bail pending appeal. In this case defendant did take an appeal and was admitted to bail pending appeal. Petitioner contends that by reason of the pending appeal, and of his being at liberty on bond pending appeal and not having been delivered to an institution of the department of corrections, his sentence was suspended while his appeal was pending. We do not agree. Rule 28.10 does not provide for a suspension of sentence. It provides for a stay of execution of the sentence. Rule 28.10(1) stays the execution of the death penalty if an appeal is pending; however, it could not be validly argued that while the convict’s appeal is pending he is not under sentence. The same rule, 28.10(2) provides for the same stay of execution of a sentence less than death if an appeal is taken and the defendant is admitted to bail pending appeal. It is obvious that if bail pending appeal did not stay the execution of the sentence imposed then the admission to bail would be a futile and useless act. It does not follow however that the defendant on bail pending appeal is not under sentence as that phrase is used in § 222.020 for it is precisely the judgment and sentence that a defendant is under that is the basis for the appeal. We hold that a person sentenced to imprisonment in an institution within the state department of corrections and who has been admitted to bail pending appeal is “under sentence” as that phrase is used in § 222.020. The second and more troublesome question is presented by one of the 1959 amendments to § 222.020 whereby the legislature struck out the words “may be” and inserted the word “is” at the conclusion of the first sentence of the act. Because of this amendment, the last phrase of the first sentence of § 222.020 provides “and in case of conviction, the sentence of the convict shall not commence to run until the expira — 489 — tion of the sentence under which he is held.” (Emphasis added.) By this amendment did the legislature intend to restrict the application of § 222.020 to those persons being held under sentence and not to require mandatory consecutive sentences in those instances where such persons are lawfully at liberty when the subsequent offense is committed? King v. Swenson, Mo., 423 S.W.2d 699, cited by respondent, did not involve offenses committed while petitioner King was lawfully at liberty but rather offenses committed while he was being held under sentence, and it is therefore inap-posite to the issue of whether or not the statute requires that the convict be held in order for it to be applicable. Although several cases have been decided by this court since 1959 involving the application of § 222.020 to persons on parole at the time of the commission of the subsequent offense and this court has held § 222.020 to be applicable on the grounds that such persons were “under sentence”, we have not previously considered the effect, if any, of the 1959 amendment on the question of whether the person must be “held” under sentence for § 222.020, as amended in 1959, to be applicable. Thus in State v. Hicks, Mo., 376 S.W.2d 160, State v. Todd, Mo., 433 S.W.2d 550, and Aguilar v. State, Mo., 452 S.W.2d 225, all decided since 1959, this court held that § 222.020 was applicable to one on parole, and utilized either State v. Campbell, Mo., 307 S.W.2d 486, or Herring v. Scott, Mo., 142 S.W.2d 670, both decided prior to the 1959 amendment, as authority for its application holding that a person on parole is still “under sentence”. As these cases indicate, the yardstick by which the applicability of § 222.020 was measured was whether or not the defendant was “under sentence” when on parole and not whether the statute required, in addition to being under sentence, that the defendant be held at the time of the subsequent offense. Prior to the 1959 amendment, this statute employed the words “may be held” and these words are surely subject to the construction that the person need not be in fact held under the previous sentence. The words “may be held” can be accommodated to a person on parole or one at liberty on bond pending appeal, as either of those persons are nevertheless under sentence and it is a sentence under which the parolee may be held should the paroling authority choose to do so, as well as a sentence under which the court, under certain conditions, could order the person on bond pending appeal to be held. “May be” has been held to mean “possible”, “perhaps”, and “by chance”. State v. Howland, 153 Kan. 352, 110 P.2d 801. “May be granted” has been held to be intransitive and “to be able to be granted”. Chicago Pheumatic Tool Co. v. Zeigler, C.C.A.Pa., 151 F.2d 784, 791. “May” can be used to denote “power” or “being able” to do an act. Webster’s Third New International Dictionary, p. 1396. Prior to the 1959 amendment to § 222.020, the first sentence had to qualify merely as one under which “he may be held”. In other words, it was required that there be some authority (court or State Board of Probation and Parole) that had the power, under the sentence, to hold the defendant should that authority choose to do so. It was not required that the authority be exercised and the defendant be held in order for § 222.020 to be applicable. Contrast then the amendment that inserted the words “is held” for “may be held”. Webster’s Third New International Dictionary, p. 1197, defines “is” as “that which is; specif: that which is factual, * * * actually the case * * “Is” connotes an existing fact. It is subject to the interpretation that the power to hold has been exercised and that which previously was capable of performance has been performed and now exists. In short, that the defendant is held under sentence. In Anthony v. Kaiser, 350 Mo. 748, 169 S.W.2d 47, 48 (1943), this court, in construing another provision of this same statute, adhered to the rules of statutory construction applicable to penal laws as set forth in State v. Butler, 178 Mo. 272, 77 S.W. 560, 572 (1903), and State v. Taylor, — 490 — 345 Mo. 325, 133 S.W.2d 336, 341 (1939), and said: “Penal and criminal statutes, such as the one before us ‘are generally “construed strictly as to those portions which are against defendants, but liberally construed in those which are in their favor —that is, for their ease and exemption. No person is to be made subject to such statute by implication, and, when doubts arise concerning their interpretation, such doubts are to weigh only in favor of the accused.” ’ ” Adhering to the long-established rules of statutory construction of penal laws, effect can be given to both the general purpose of § 222.020 and the 1959 amendment. When § 222.020 is considered in its entirety, it is seen that it initially provides that persons under sentence to imprisonment to the department of corrections are under the protection' of law, and injury to their persons not authorized by law is punishable. It then continues on with the provision that the prisoner is also amenable to trial and conviction for the subsequent offense and makes the second sentence consecutive to the first (to the sentence under which he is held at the time the second offense is committed) . The purpose of the latter portion of § 222.020 is to provide fellow prisoners and those persons who have the duty of holding persons under sentence, whether they be held in a county jail as was the case in Allen v. Hall, 196 Mo. 226, 95 S.W. 415, or held in a vehicle transporting them through various counties to the place designated by the department of corrections, or by any other method, with additional protection and to deter violence and disruption. The additional protection being the deterrent effect of a consecutive sentence if, while the prisoner is being held, he commits another offense. Thus, the total context of this section relates to persons being held and not to persons lawfully at liberty. We believe the 1959 amendment which changed the phrase “may be held” to “is held” clearly evidenced a legislative intent to restrict the application of § 222.020 to those persons who are being held under sentence at the time of the subsequent offense. If, arguendo, the statutory amendment left doubt as to the legislative intent, then the doubt must be resolved in favor of the accused, and the same result is reached. Anthony v. Kaiser, supra, State v. Butler, supra, State v. Taylor, supra. The original and present provision of § 222.020 relating to the commission of the subsequent offense “in any county of this state while under sentence” makes this section applicable even though the offense is not committed in an institution within the department of corrections. Thus, the legislature recognized that a person under sentence to the department of corrections must, of necessity, be held at least temporarily in a county jail and must be transported through various counties on his way to the confining institution, and the persons holding such convict may be county sheriffs or others who may or may not be employed by the department of corrections. This provision, however, does not nullify the requirement that the person must be under sentence to an institution within the department of corrections nor the 1959 amendment requiring that he be held under such sentence at the time the subsequent offense is committed. Concern has been registered that a convict who escapes and commits an offense while illegally at large may avoid the application of § 222.020. We do not believe the legislature intended such a result nor is it a necessary consequence of our holding in this case. An escapee is not lawfully at liberty and he cannot avoid being subject to § 222.020 by the criminal act of escaping. He is still, in legal contemplation, being held under sentence for he is not lawfully at liberty. We adhere to the decisions in State v. Campbell, supra, and Herring v. Scott, supra, decided prior to the 1959 amendment to § 222.020, and State v. Hicks, supra, State v. Todd, supra, and Aguilar v. State, supra, decided since 1959, wherein it was — 491 — held that the person of a convict is still under sentence even though he is lawfully at liberty on parole. To the extent that the cited cases conflict with our holding today with respect to the applicability of § 222.-020, as amended 1959, they should no longer be followed. In the instant case petitioner was under sentence to the department of corrections but lawfully at liberty on bond pending appeal and, consequently, was not being held when he committed the subsequent offense. In these circumstances § 222.020, V.A.M.S., was not applicable to petitioner and, therefore, it was not required that the Jackson County sentence be served consecutively to the Clay County sentence. At the time petitioner was sentenced in Jackson County, the court knew that petitioner was under sentence for the prior offense in Clay County and in its discretion could have imposed either a consecutive (cumulative) or a concurrent sentence. The subsequent sentence contained no direction that it be consecutive and consequently an intention is thereby evinced that the sentence should be served concurrently. Anthony v. Kaiser, supra, 169 S.W.2d loc. cit. 50. As set forth, supra, it is stipulated that petitioner has served the longer of the sentences imposed. Therefore, with no applicable statutes making the sentences consecutive to each other and, in the absence of direction in the sentence on the subsequent offense to that effect, we hold under the rule stated in Anthony v. Kaiser, supra, and State ex rel. Meininger v. Breuer, 304 Mo. 381, 264 S.W. 1, 2, that petitioner’s terms were concurrent, and he is therefore entitled to his discharge. It is so ordered. SEILER and MORGAN, JJ., and' SHANGLER, Special J., concur; FINCH, Acting C. J., dissents in separate dissenting opinion filed; DONNELLY and HOLMAN, JJ., dissent and concur in dissenting opinion of FINCH, Acting C. J.; HENLEY, C. J., not sitting at time cause was submitted.