Loper v. Shillinger

CARDINE, Chief Justice.

This matter is before us on a writ of certiorari. The issue presented is whether a sentence, legally imposed on a defendant for crimes committed while on parole, is presumed to run concurrently with the remainder of the original sentence reinstated by parole revocation. We answer this question in the negative.

Petitioner Donald Loper was on parole from the Wyoming State Penitentiary when he committed a number of burglaries. He was arrested and charged with four counts of burglary. Pursuant to a plea bargain agreement, he pled guilty to all four counts and received sentences of five to ten years on each count, with all four sentences to run concurrently. After his return to the penitentiary, the Board of Parole revoked his parole, and informed Loper that he would begin to serve his new sentences when his original sentence was completed.

Petitioner does not contest the legality of his sentences for the burglary counts, nor does he contest the legality of his parole revocation. The essence of his argument is that in the absence of any express statement to the contrary in the court’s last judgment and sentence, his last sentence should be presumed to run concurrently with the remainder of his original sentence. He asks that we adopt a judicial presumption to the effect that a sentence which is silent concerning the effect of parole revocation be presumed to run concurrent with a reinstated sentence.

We decline to adopt the presumption advanced by petitioner. The sentencing judge has discretion to determine whether sentences shall be served consecutively or concurrently. Eaton v. State, 660 P.2d 803 (Wyo.1983). Here, the sentencing judge was aware that petitioner was on parole at the time he was sentenced. Petitioner was advised that his guilty plea could result in revocation of parole. The judge did not specify that the four concurrent sentences would run concurrently with the remainder of his original sentence in the event that parole was revoked.

To presume concurrency in this situation ignores the logic of the United States Supreme Court as articulated in Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808 (1938):

“Parole is intended to be a means of restoring offenders who are good social risks to society; to afford the unfortunate another opportunity by clemency— under guidance and control of the [parole] Board. Unless a parole violator can be required to serve some time in prison in addition to that imposed for an offense committed while on parole, he not only escapes punishment for the unexpired portion of his original sentence, but the disciplinary power of the Board will be practically nullified.” 304 U.S. at 363, 58 S.Ct. at 874.

We see no.reason to adopt a presumption which would have the effect of rewarding one who uses release on parole as an opportunity to commit further crimes.

No error.