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COMMONWEALTH EX REL. SHOLTER v. CLAUDY (07/17/52)

July 17, 1952

COMMONWEALTH EX REL. SHOLTER
v.
CLAUDY, WARDEN, WESTERN STATE PENITENTIARY



COUNSEL

Gustav W. Wilde, Pittsburgh, Pa., for appellant.

Edward L. Willard, Dist. Atty., Bellefonte, for appellee.

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

Author: Ross

[ 171 Pa. Super. Page 443]

ROSS, Judge.

This is an appeal from an order of the Court of Common Pleas of Centre County, dismissing relator's petition for a writ of habeas corpus and refusing the writ.

On August 3, 1942, the relator, George F. Sholter, was sentenced by the Court of Oyer and Terminer of Blair County to serve a term of 5 1/2 to 11 years from July 28, 1942, for a conviction on three charges of robbery and attempted robbery. He was committed to the Western State Penitentiary and later, on August 9, 1945, was transferred to Rockview Prison Farm in Centre County, from which he escaped on June 11, 1946. He was at large until February 22, 1950, at which time he was apprehended at Rock Hill, South Carolina. He was returned to Pennsylvania and placed in Centre County jail on February 28, 1950.

On May 12, 1950, relator entered a plea of guilty to the crime of prison breach defined and made punishable by section 309 of the Penal Code of 1939, P.L. 872, 18 P.S. § 4309; and on that day was sentenced by the court below to 'pay the costs of prosecution and undergo imprisonment in the Western State Penitentiary for and during the term of not less than two (2) nor more than four (4) years to be computed from the expiration of the sentence imposed by the Court of Oyer and Terminer of Blair County to No. 22-B October Term, 1942, credit to be given, however, on account of this sentence for the period of time from February 28, 1950, to the date of this sentence, and stand committed until the sentence is complied with.'

[ 171 Pa. Super. Page 444]

Relator's petition for writ of habeas corpus was filed with the court below on November 6, 1951. Answers were filed by the District Attorney of Centre County and by the Warden of the Western State Penitentiary. The court, in an opinion filed November 9, 1951, dismissed the petition on the ground that the relator was still legally confined under the Blair County sentences and that the petition was, for that reason, premature. Thereafter, however, it came to the attention of the court that the Blair County sentences had been commuted by the Pennsylvania Board of Parole as of October 15, 1951, and that relator had been detained in the Western State Penitentiary to begin serving the sentence imposed for prison breach. A new order was filed on November 15, 1951, canceling the prior order and thereafter, on November 21, 1951, the matter was heard on the merits. Relator was present at this hearing and gave testimony. In a second opinion filed November 29, 1951, the petition was again dismissed.

The relator set forth in his petition the following reasons in support of his contention that the writ should issue: (1) That he was held 'incommunicado in the County Jail of Centre County * * * for seventy-four (74) days'; (2) That 'no charge and no information was drawn up against him, until seven (7) months after his escape'; (3) he was not given a preliminary hearing on the escape charge and so was not 'informed of the nature of the charge against him, [was] given [no] opportunity to obtain Counsel, * * * witnesses, * * * [or] to enter a plea'; (4) the court pronounced sentence on a 'district attorney's Bill of indictment which was not valid after two years, since the charge was a misdemeanor'; (5) the sentence of the court of not less than two years nor more than four years to be 'computed from February 28, 1950', was altered by the 'Chairman of the Pennsylvania Board of Parole'

[ 171 Pa. Super. Page 445]

    to 'two (2) to four (4) years, computed from October 15, 1951'; (6) he was denied counsel when he appeared to enter a ...


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