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COMMONWEALTH ET REL. MCDEVITT v. BURKE (01/12/50)

January 12, 1950

COMMONWEALTH ET REL. MCDEVITT
v.
BURKE, WARDEN



COUNSEL

Herbert L. Maris, Philadelphia, for petitioner.

James W. Tracey, Jr., First Assistant District Attorney, John H. Maurer, District Attorney, Philadelphia, for respondent.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Fine, JJ.

Author: Rhodes

[ 166 Pa. Super. Page 195]

RHODES, President Judge.

This is a petition for writ of habeas corpus in which relator avers (1) that one of the sentences imposed upon him was unlawful in that it exceeded the maximum prescribed by law, and (2) that he is eligible to apply for parole. Rule was granted and answers were filed by the District Attorney of Philadelphia County and the Warden of the Eastern State Penitentiary. Written briefs were presented and the matter was orally argued. We may consider the petition and dispose of the issues. Com. ex rel., Madden v. Ashe, 162 Pa. Super. 39, 41, 56 A.2d 335; Com. ex rel., Hill v. Burke, 165 Pa. Super. 583, 69 A.2d 169, 170.

Relator, after trial and conviction in the Court of Oyer and Terminer of Philadelphia County, was sentenced on December 13, 1929, upon two bills of indictment -- on No. 698, December Term, 1929, charging attempted burglary, to serve a term of not less than five years nor more than ten years in the Eastern State Penitentiary; and on No. 701, December Term, 1929, charging entering with intent to steal, to serve a term of not less than five years nor more than ten years in the Eastern State Penitentiary, and commencing at the expiration of sentence on bill No. 698.

The sentences were improperly lumped by the prison authorities. Com. ex rel. Lynch v. Ashe, 320 Pa. 341, 182 A. 229; Kinsella v. Board of Trustees, 340 Pa. 497, 500, 17 A.2d 882. The Governor, by his charter of commutation, on June 3, 1935, commuted the combined

[ 166 Pa. Super. Page 196]

    minimums of ten years (five and five) to five years and six months, expiring June 13, 1935.

Relator was released on parole on July 16, 1935, having served five years, seven months, and three days in the penitentiary, thus leaving an unexpired balance of four years, four months, and twenty-eight days of the uncorrected sentence on bill No. 698, and the entire balance of ten years on bill No. 701. While on parole relator committed three new offenses. He pleaded guilty to two of them in the Court of Oyer and Terminer and the Court of Quarter Sessions of Philadelphia County as follows: Bill No. 156, March Term, 1939, charging armed robbery, and bill No. 157, March Term, 1939, charging conspiracy to commit robbery. On March 13, 1939, relator was sentenced on bill No. 156 to serve a term of not less than ten years nor more than twenty years in the Eastern State Penitentiary, the same to begin at the expiration of unexpired parole on bills Nos. 698 and 701; but on March 31, 1939, the court reconsidered the sentence and directed that it should run concurrently with parole violation on bills Nos. 698 and 701. Bill No. 157 was endorsed with a notation that sentence thereon was imposed under bill No. 156.

Relator was returned to the penitentiary on March 13, 1939. Later he was taken to the Court of Oyer and Terminer of Delaware County where he pleaded guilty to bill of indictment No. 460, March Term, 1939, charging robbery and assault, upon which he was sentenced to a term of not less then four years nor more then eight years in the Eastern State Penitentiary, the same to run concurrently with the sentence he was then serving.

The District Attorney of Philadelphia County, in his answer to the rule issued on relator's petition, concedes that the maximum term to which relator could be sentenced legally for the crime of attempted burglary ...


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