Subsequent to the decision of the Supreme Court, and without the petitioner being present, the trial court on motion of the District Attorney of Fayette County, Pennsylvania, on July 18, 1951 entered the following Order:
'And now, July 18, 1951, upon consideration of the foregoing motion of the District Attorney, it is ordered and directed that said defendant, John Holly, be transferred forthwith from the Allegheny County Workhouse to the Western Penitentiary, there to serve the remainder of the original sentences imposed upon him by this Court at No. 25/156 September Term, 1946, and at No. 21/152 September Term, 1946; and it is further ordered that execution of the sentence imposed upon defendant, John Holly, to the Allegheny County Workhouse by this Court at No. 13/109 September Term, 1946, under date of July 11, 1950, be postponed until the expiration of the sentence at No. 21/152 September Term, 1946, at which time the defendant, John Holly, shall be transferred forthwith to the Allegheny County Workhouse.'
Said Order just referred to requires petitioner to serve a minimum of five years and a maximum of ten years in the Western State Penitentiary on Criminal Actions 25/156 and 21/152, and after the completion thereof, or at such time as petitioner is paroled, a maximum sentence of four years in the Allegheny County Workhouse on Criminal Action 13/109.
On August 3, 1952, petitioner was paroled as to Criminal Actions 25/156 and 21/152, and was transferred from the Western State Penitentiary to the Allegheny County Workhouse to commence the execution of the four-year sentence imposed on Criminal Action 13/109 so that he has commenced the fulfillment of said sentence.
It appears that between the decision of the Superior Court and the reversal by the Supreme Court of Pennsylvania, the petitioner was confined to the Allegheny County Workhouse in execution of a sentence imposed at Criminal Action 13/109, for the period from July 10, 1950 to July 19, 1950. Petitioner would, therefore, be entitled as a matter of law to a credit on the four-year sentence which he commenced to serve in the Allegheny County Workhouse on August 3, 1952, since his confinement to said institution was on Criminal Action 13/109.
The limitations on the right of a court to increase a sentence, whether within or without a term of court, seem to be well settled.
The general rule is that judgments, decrees and orders are within the control of the court during the term at which they were made. They are deemed to be 'in the breast of the court' making them, and subject to be amended, modified or vacated by that court. This rule applies to criminal cases provided the punishment be not augmented or a punishment partly suffered be not increased. United States v. Benz, 282 U.S. 304, 307, 51 S. Ct. 113, 75 L. Ed. 354.
It is well settled in Pennsylvania that a court cannot increase or add to a sentence after the term at which it was imposed. Commonwealth ex rel. Billman v. Burke, Warden, 362 Pa. 319, 66 A.2d 251; Commonwealth v. Downer, supra.
In Pennsylvania a court has power to revoke and vacate an original sentence within the term of court, and to impose more severe sentences at a later term. Commonwealth ex rel. Michelotti v. Ashe, Warden, 162 Pa.Super. 18, 56 A.2d 313.
Where an invalid or void sentence has been imposed, the defendant has never been legally sentenced and proper sentence may be imposed at a later term. Commonwealth ex rel. Paige v. Smith, Warden, 130 Pa.Super. 536, 198 A. 812.
When the Superior Court in Pennsylvania vacated the sentences of 21/152 and 25/156 and directed re-sentence on 13/109, such order seems to have been based solely on the premise that confinement under State law could not rest in a state penitentiary but had to be in an institution of another type.
As stated in the order of reversal by the Supreme Court of Pennsylvania, no enlightenment is found as to whether the order of the Superior Court was sustained or vacated as to Criminal Action 13/109.
An order of clarification must be entered by an appropriate State tribunal as to whether or not, in view of the decisions of the Superior and Supreme Courts of Pennsylvania, it was intended that the original sentence imposed on 13/109 on March 3, 1947, the amended sentence of July 11, 1950, or the amended sentence of July 18, 1951 should be executed by petitioner since as a result of being paroled on August 3, 1952 he has completed the execution of the sentences imposed at 21/152 and 25/156.
It may be that the amended sentence pronounced on Criminal Action 13/109 is illegal or void and, if so, habeas corpus in the State courts is the proper remedy to adjudicate the question. Commonwealth ex rel. Nagle v. Smith, Warden, 154 Pa.Super. 392, 36 A.2d 175.
Since state remedies have not been exhausted and the legal sentence to be sustained on Criminal Action 13/109 is a matter solely for the determination of a State tribunal, it is necessary to deny the application for writ of habeas corpus without prejudice. An appropriate Order is entered.
© 1992-2004 VersusLaw Inc.