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COMMONWEALTH EX REL. KUNKLE v. CLAUDY ET AL. APPEAL COMMONWEALTH (10/01/52)

October 1, 1952

COMMONWEALTH EX REL. KUNKLE
v.
CLAUDY ET AL. APPEAL OF COMMONWEALTH



COUNSEL

L. Alexander Sculco, Dist. Atty., Greensburg, Frank P. Lawley, Jr., Asst. Deputy Atty. Gen., Randolph C. Ryder, Deputy Atty. Gen., Robert E. Woodside, Atty. Gen., for appellants.

D. J. Snyder, Jr., Greensburg, for appellee.

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

Author: Rhodes

[ 171 Pa. Super. Page 558]

RHODES, President Judge.

This is an appeal by the Commonwealth*fn1 from an order of a Judge of the Court of Common Pleas of Westmoreland County granting relator's petition for writ of habeas corpus and discharging him from the custody of the Warden of the Western State Penitentiary. Upon the appeal being taken a supersedeas was granted.

The determinative question is whether relator, having been convicted of a crime while on parole and sentenced to the penal institution from which he had been released on parole, must first serve the remainder of the term originally imposed before the commencement of the term imposed for the later crime. In numerous decisions we have answered the question in the affirmative.

Relator pleaded guilty to an indictment in the Court of Oyer and Terminer of Westmoreland County at No. 179, November Term, 1940, charging (1) burglary, and (2) larceny; and on December 9, 1940, he was sentenced by that court to a term of not less than five years nor more than ten years in the Western State Penitentiary, to be computed from November 12, 1940.

[ 171 Pa. Super. Page 559]

On November 12, 1945, the expiration of his minimum sentence, he was released on parole. During the period of his parole he was indicted in the Court of Oyer and Terminer of Westmoreland County at No. 6, May Term, 1947, for (1) burglary, (2) larceny, and (3) receiving stolen goods. He was tried and found guilty by a jury; and on June 13, 1947, he was sentenced to the Western State Penitentiary (from which he had been released on parole) to a term of not less than three years nor more than six years 'to be computed from April 10, 1947,' -- which was the date of his arrest and incarceration for such offenses. At that time there remained unserved of his original maximum sentence a period of five years.

On August 24, 1951, the Pennsylvania Board of Parole reparoled relator for the remainder of the sentence imposed at No. 179, November Term, 1940, effective September 14, 1951, after serving four years, five months, and four days of the remaining five years of his original maximum sentence which had not been served when he was recommitted to the penitentiary. He was then reentered to begin serving the sentence imposed at No. 6, May Term, 1947.

On January 18, 1952, relator filed his petition for writ of habeas corpus in the Court of Common Pleas of Westmoreland County on the grounds that (1) the sentence at No. 6, May Term, 1947, ran concurrently with the balance of his original sentence at No. 179, November Term, 1940, and that (2) the sentence at No. 6, May Term, 1947, was therefore illegal under 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. Upon the presentation of the petition a rule to show ...


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