The opinion of the court was delivered by: GOURLEY
This proceeding is the third of a series of habeas corpus actions which have been presented to this court with the confinement of petitioner being based on judgments entered by one of the State tribunals within the jurisdiction of this court.
In each of the former habeas corpus proceedings the Court thoroughly and exhaustively considered the many contentions made by the petitioner. United States ex rel. Holly v. Commonwealth of Pennsylvania, D.C., 81 F.Supp. 861, affirmed 174 F.2d 480; United States ex rel. Holly v. Claudy, Warden, D.C., 101 F.Supp. 751, affirmed by the United States Court of Appeals for the Third Circuit, 196 F.2d 1017.
Furthermore, petitioner has been before the State courts on numerous occasions and the question which he raises in the instant proceeding has been partially, but not completely or finally considered by the appellate courts in this state. Commonwealth ex rel. Holly v. Ashe, Warden, 166 Pa.Super. 599, 74 A.2d 182, reversed 368 Pa. 211, 82 A.2d 244; Commonwealth ex rel. Holly v. Claudy, 171 Pa.Super. 340, 90 A.2d 253.
The Court will take judicial knowledge of all records of the Commonwealth of Pennsylvania as they relate to the matter for adjudication.
Petitioner was first sentenced at No. 25/156 on March 3, 1947 to imprisonment in the Western State Penitentiary for an indeterminate period of not less than two and one-half years and not more than five years, to be computed from July 25, 1946. The sentence at No. 21/152 was subsequently imposed the same day for an indeterminate term to the Western State Penitentiary of not less than two and one-half years and not more than five years, the same to commence and be computed from the expiration of the sentence imposed at No. 25/156. On April 1, 1947, sentence at No. 13/109 was imposed for an indeterminate period of not less than one year or more than five years, said sentence to begin at the expiration of the sentences imposed at Nos. 25/156 and 21/152. Said three sentences carried a minimum sentence of six years, expiring on July 25, 1952, and a maximum sentence of fifteen years, expiring on July 25, 1961.
In a previous habeas corpus proceeding filed in the state court, the Superior Court of Pennsylvania set aside sentences at 25/156 and 21/152 and directed the trial court to resentence petitioner at 13/109. Commonwealth ex rel. Holly v. Ashe, Warden, 166 Pa.Super. 599, 74 A.2d 182.
Said Order and Mandate were issued to the Court of Fayette County, Pennsylvania, on June 12, 1950, and based thereon, on July 11, 1950 the trial court imposed the following sentence in the presence of petitioner:
'And now, July 11, 1950, the defendant, John J. Holly, having been brought before this Court for re-sentence, pursuant to order of the Superior Court under date of June 12, 1950, after consideration, the said defendant, John Holly, is hereby sentenced to undergo imprisonment in the Allegheny County Workhouse for and during a period of four years, to be computed from June 12, 1950, the date of the aforesaid Order of the Superior Court.
'Should an appeal to The Supreme Court be allowed from the Order of The Superior Court reversing the sentences of this Court at No. 25/156 September Term, 1946, and at No. 21/152 September Term, 1946, and should said Orders be reversed and the sentences reinstated, then further execution of this sentence is to be postponed until the expiration of the sentence at No. 21/152 September Term, 1046, and the defendant shall be transferred forthwith to the Western Penitentiary.'
It is well to remember when the trial court imposed the amended sentence as to 13/109, in accordance with the Mandate of the Superior Court, it was provided:
'Should an appeal to The Supreme Court be allowed from the Order of The Superior Court reversing the sentences of this Court at No. 25/156 September Term, 1946, at No. 21/152 September Term, 1946, and should said Orders be reversed and the sentences reinstated, then further execution of this sentence is to be postponed until the expiration of the sentence at No. 21/152 September Term, 1946, and the defendant shall be transferred forthwith to the Western Penitentiary.'
Where an appellate court in Pennsylvania reverses an original sentence because it is an illegal or erroneous sentence, and remits the record for appropriate action, the lower court may proceed to sentence the defendant anew in proper form and according to law. The power of the lower court to sentence the defendant anew is restricted to the correction of the specific features of the original sentence which the appellate court has held to be illegal or erroneous. The Superior Court does not have the power to bring about an increase in a valid sentence by reversing the original sentence and remitting the record to the lower court for sentence anew. Commonwealth v. Downer, 161 Pa.Super. 339, 53 A.2d 897.
As I read the Superior Court opinion, when petitioner was remanded for sentence on Criminal Action 13/109 in accordance with law, such Mandate and Order were premised on the Pennsylvania law that the crime involved required simple imprisonment rather than confinement in a penitentiary. No suggestion was offered by the Superior Court that the sentence be increased. In fact, said court suggested to the lower court, 'When petitioner is resentenced, consideration should be given that imprisonment undergone in the penitentiary is considered equivalent to a substantially greater period of time under simple imprisonment.'
If the Order of the Superior Court of Pennsylvania had been sustained by the Supreme Court of Pennsylvania, the sentence imposed by the lower court on 13/109 would have been computed from June 12, 1950, and the maximum sentence would not expire until June ...