John P. Carmelo, in pro. per.
Ralph B. Umsted, Deputy Atty. Gen., for appellee.
Before Rhodes, P.j., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 111]
This is an appeal by relator from an order of the Court of Common Pleas of Montgomery County sustaining the validity of section 10 of the Act of June 19, 1911, P.L. 1055, as amended, 61 P.S. § 305, and dismissing relator's petition for writ of habeas corpus.
It appears that relator was convicted of attempted robbery in the Court of Quarter Sessions of Berks County (No. 14, December Sessions, 1940); and that he was sentenced on March 27, 1941, to a term of not less than two years nor more than seven years in the Eastern State Penitentiary. The effective date of this sentence was March 29, 1943, due to the violation of a previous parole. On July 20, 1943, the two year minimum of the sentence at No. 14, December Sessions, 1940, was commuted to a period of five months which expired on August 29, 1943. On the latter date relator was paroled. On June 4, 1944, relator was arrested for violation of the Mann Act, 18 U.S.C.A. § 2421 et seq.; he was subsequently convicted in the United States District Court for the Eastern District of Pennsylvania; and on October 5, 1944, that court imposed a sentence of two years to be served concurrently with service of the sentence at No. 14, December Sessions, 1940. Relator's parole on August 29, 1943, having been violated by the commission of the federal offense, relator was recommitted to the penitentiary on October 5, 1944.
It is relator's contention that his maximum sentence at No. 14, December Sessions, 1940, expired on March 29, 1950, seven years after its effective date. The Pennsylvania Board of Parole, however, calculates the expiration date of his sentence to be May 5, 1951. He
[ 168 Pa. Super. Page 112]
is allowed credit for the five months served prior to parole, but he is denied credit for the time he was out on parole, to wit, from August 29, 1943, to October 5, 1944. This is in accordance with 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 P.S. § 305. See Com. ex rel. Lerner v. Smith, 151 Pac.Super. 265, 267, 268, 30 A.2d 347.
Relator acknowledges that the Pennsylvania Board of Parole has correctly calculated the expiration date of his maximum sentence under section 10 of the Act as it has been interpreted by the Supreme Court and this Court. Our courts have consistently held that, under section 10 of the Act of 1911, as amended, where the parole of a prisoner sentenced to the penitentiary is terminated upon conviction of another crime committed while on parole, the prisoner shall be imprisoned for the remainder of the term or original sentence not served when the parole was granted; and that no credit may be allowed for the time he was out on parole and not delinquent. Com. ex rel. Meinzer v. Smith, 118 Pa. Super. 250, 180 A. 179; Com ex rel. Kent v. Smith, 323 Pa. 89, 186 A. 812; Narcise v. Board of Trustees, Eastern State Penitentiary, 137 Pa. Super. 394, 9 A.2d 165; Com. ex rel. Lerner v. Smith, supra, 151 Pa. Super. 265, 30 A.2d 347; Com. ex rel. O'Leary v. Ashe, 152 Pa. Super. 322, 32 A.2d 36. The provisions of this section are mandatory. Com. ex rel. McDevitt v. Burke, 166 Pa. Super. 194, 197, 70 A.2d 663.
Relator argues that section 10 of the Act of 1911, as amended, is unconstitutional in that, as construed, it permits the Pennsylvania Board of Parole to extend the maximum of the original sentence for the period such recommitted prisoner was out on parole, and that this conferred power is in contravention ...