The opinion of the court was delivered by: SMITH
The defendant was heretofore convicted on his plea of guilty to each of four separate counts of a criminal information which charged him and another with violations of Sections 1708 and 495 of Title 18 U.S.C., 18 U.S.C.A. § 1708 and 495, to wit, theft of mail and forgery. The defendant was later sentenced to a term of imprisonment. It should be noted that the judge who imposed the sentence is now deceased. The matter is before the Court at this time on a motion to vacate, set aside and correct the sentence, filed by the defendant under Section 2255 of Title 28 U.S.C., 28 U.S.C.A. § 2255.
It appears from the presentence report that the defendant was first apprehended and held for questioning by members of the Police Department in Jersey City, New Jersey, on April 23, 1953. The circumstances which led to his apprehension are not relevant at this time. Thereafter, there were lodged with the United States Commissioner two complaints, one of which charged the defendant with a violation of Section 1708 of Title 18 U.S.C.A., to wit, theft of mail, and the other of which charged him with a violation of Section 495 of Title 18 U.S.C.A., to wit, forgery.
While the defendant was at liberty awaiting disposition of the federal charges, there was filed in the Municipal Court of Jersey City, New Jersey, a complaint which charged that the defendant was a fugitive from justice. This complaint was filed on May 6, 1953, and process issued on the same date. The defendant was apprehended on the said date and thereafter was arraigned before the Honorable Morris E. Barrison, Judge of the said Court. He was held without bail and committed to the Hudson County Jail to await extradition to Pennsylvania. The commitment contained a limitation of thirty days, but it appears that the defendant was held more than thirty days notwithstanding this limitation. This statement of fact is predicated not only on the 'agreed Statement of Facts' filed herein, but also on the original docket entries of the Municipal Court.
The defendant was produced in this court on October 30, 1953, in obedience to a writ of habeas corpus ad prosequendum which issued on an order entered on October 23, 1953. The defendant thereupon executed a 'Waiver of Indictment,' by the express terms of which he waived prosecution by indictment and consented to prosecution by information. The information referred to in our initial paragraph was filed, and thereupon the defendant entered a plea of guilty to each of the four counts therein contained. The defendant was immediately returned to the Hudson County Jail in obedience to the said writ.
The defendant was again produced in this court on March 5, 1954, in obedience to a writ of habeas corpus ad prosequendum which issued on an order entered on February 25, 1954. The sentence to which reference is hereinafter made was imposed and the defendant was thereafter immediately returned to the Hudson County Jail in obedience to the said writ. A detainer was filed with the Warden of the Hudson County Jail on March 22, 1954 while the defendant was still in custody. It appears from the records of this court that a writ of habeas corpus ad prosequendum was issued earlier, to wit, on November 12, 1953, but this writ was returned unexecuted.
A transcript of the record discloses that Judge Modarelli, now deceased, pronounced sentence as follows: 'Mr. Harrison, you are hereby committed to the custody of the Attorney General's authorized representative for imprisonment for a period of two years.' This record also discloses that a similar sentence was imposed on a co-edefendant, one Herbert Daughtry. At the conclusion of the proceedings the Assistant United States Attorney directed the Court's attention to the fact that there were four counts in the information. Judge Modarelli then stated: 'On each count, to run concurrently.'
There can be little doubt as to the intention of the Judge. The pertinent provision of the Judgment and Commitment reads as follows: 'It is Adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of Two (2) Years on each of Counts 1, 2, 3 and 4, to run concurrently.' This provision appears to be clearly consistent with the sentence as pronounced in open court. It is important to note that Judge Modarelli, in the imposition of sentence, made no reference to the proceedings then pending against the defendant in the Municipal Court of Jersey City.
The defendant, upon his return to the State of Pennsylvania, was committed to the Pennsylvania State Prison, where he was incarcerated until May 26, 1956, at which time he was reparoled and placed under the supervision of the parole authority of the State of Connecticut. Thereafter, the defendant remained at liberty until April 24, 1957, when he was apprehended on a warrant of arrest issued out of this court in April 18, 1957.
The defendant is presently confined in the Federal Correctional Institution at Danbury, Connecticut, on the sentence imposed by Judge Modarelli, supra.
The defendant argues in support of his present motion that the term of imprisonment imposed in this court commenced on March 5, 1954. He argues further that as a consequence the term of imprisonment under the federal sentence ran concurrently with his servitude in the Pennsylvania State Prison. We are of the opinion that the argument is without merit. Crimes and Criminal Procedure, 18 U.S.C.A. § 3568; United States v. Jazorek, 7 Cir., 226 F.2d 693; Zahn v. Kipp, 7 Cir., 218 F.2d 898; Strewl v. McGrath, 89 U.S.App.D.C. 183, 191 F.2d 347, certiorari denied 343 U.S. 906, 72 S. Ct. 637, 96 L. Ed. 1325; Gunton v. Squier, 9 Cir., 185 F.2d 470; Stamphill v. United States, 10 Cir., 135 F.2d 177; Rohr v. Hudspeth, 10 Cir., 105 F.2d 747. The term of imprisonment under the federal sentence commenced to run when the defendant was apprehended and committed to the Federal Correctional Institution; prior to that time exclusive jurisdiction over the person of the defendant was retained by the state authorities. Ibid.
The situation here presented is governed by the express provisions of Section 3568 of Title 18 U.S.C.A., which provides: 'The sentence of imprisonment of any person convicted of any offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence.' (Emphasis by the Court.) It is therein further provided: 'If any such person shall be committed to a jail or other place of detention to wait transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date ...