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COMMONWEALTH EX REL. LITTLE v. KEENAN. (11/17/50)

November 17, 1950

COMMONWEALTH EX REL. LITTLE, APPELLANT,
v.
KEENAN.



Appeal, No. 112, April T., 1950, from order of Court of Common Pleas of Allegheny County, April T., 1950, No. 1849, in case of Commonwealth of Pennsylvania ex rel. Pete Little v. Lawrence P. Keenan, Superintendent, Allegheny County Workhouse. Order affirmed.

COUNSEL

Walter T. McGough, with him Reed, Smith, Shaw & McClay, for appellant.

Gilbert Helwig, Assistant District Attorney, with him William S. Rahauser, District Attorney and Owen B. McManus, Assistant District Attorney, for appellee.

Hirt, Reno, Ditrich, Ross, Arnold, and Gunther, JJ. (rhodes, P. J., absent).

Author: Per Curiam

[168 Pa. Super. 125 Page 127]

PER CURIAM, January 12, 1951:

This is an appeal from an order of the Court of Common Pleas of Allegheny County dismissing relator's petition for a writ of habeas corpus and refusing the writ. The question presented is whether a convict, whose parole from the Allegheny County Workhouse has been revoked by reason of his conviction of another crime during the term thereof, may be required to serve the balance of his maximum sentence remaining as of the time the parole was granted, without credit for the time at liberty theron, in addition to the sentence imposed for the second offense.

The facts are as follows: On June 9, 1942, after having entered a plea of guilty to a charge of larceny of automobile, relator was sentenced by the Court of Quarter Sessions of Allegheny County, Mo. 156, January Sessions, 1942, to a term of imprisonment of not less than one year and not more than five years in the Allegheny County Workhouse. The sentence became effective at the expiration of another sentence relator was then serving, to wit, on May 8, 1943. On May 8, 1944, relator was paroled by the Pennsylvania Board of Parole. On January 16, 1946, however, 1 year, 8 months and 8 days after the beginning of the period of parole, relator entered a plea of guilty to another charge of larceny of automobile in the Court of Quarter Sessions of Washington County, No. 92, February Sessions, 1946, and was thereupon sentenced by that court to a term of not less than two years nor more than five years in the Western State Penitentiary. At the expiration of service of the minimum term of the latter sentence, January 16, 1948, relator was paroled from the penitentiary but was thereupon returned by detainer to the Allegheny County Workhouse to serve the balance of his former sentence remaining as of the time he was paroled.

[168 Pa. Super. 125 Page 128]

On February 21, 1950, relator filed his petition in the Court of Common Pleas of Allegheny County for a rule to show cause why a writ of habeas corpus should not be issued. An answer was filed by the District Attorney of Allegheny County and on April 14, 1950, the court below dismissed the petition and denied the writ.

Appellant contends that he is being illegally detained because the maximum sentence under which he was confined in the Allegheny County Workhouse has expired. The argument presented by his counsel in support of such contention is (1) that he should receive credit for the time he was on parole and not delinquent, in which event his maximum sentence would have expired on May 9, 1950, and (2) that while serving time in the penitentiary for the second offense, he was concurrently serving a portion of his first sentence, under which theory his maxiumu sentence would have expired on January 16, 1950, even without allowance for the time he was on parole and not delinquent.

If the provisions of section 10 of the Act of June 19, 1911, P. L. 1055, as amended by the Act of June 22, 1931, P. L. 862, § 1, 61 PS § 305, are applicable under the present circumstances, appellant's contentions have no merit. This section specifically provides that such sentences are not to be concurrent. Com. ex rel. Lerner v. Smith, 151 Pa. Superior Ct. 265, 30 A.2d 347; Com. ex rel. Lieberman v. Smith, 152 Pa. Superior Ct. 1, 30 A.2d 625. If the provisions of such section have application in the present case, it is of no moment that the sentencing judge in the Court of Quarter Sessions of Washington County made no reference as to whether or not the sentence imposed by him and the balance of the original sentence from which appellant had been paroled were to ...


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