Robert Kitzinger, in pro. per.
Albert A. Fiok, Asst. Dist. Atty., James F. Malone, Jr., Dist. Atty., Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 454]
Relator was indicted and convicted in the criminal courts of Allegheny County of certain crimes committed while on parole from the Western State Penitentiary. On June 26, 1940, he was returned to the penitentiary under the following sentences imposed upon such convictions:
No. 16, January Sessions, 1940, O. & T. -- assault and battery with intent to commit armed robbery -- 9 to 18 years. It was provided that this sentence was to run concurrently with the service of the remainder of the sentences from which relator had been paroled. It appears that relator had 11 years, 11 months, and 17 days to serve of original sentences after violation of parole.
No. 12, January Sessions, 1940, O. & T. -- burglary -- 5 to 10 years, to begin and take effect at the expiration of sentence imposed at No. 16.
No. 63, January Sessions, 1940, Q.S. -- felonious assault and battery -- 3 to 6 years, to begin and take effect at the expiration of sentence imposed at No. 12.
No. 64, January Sessions, 1940, Q.S. -- felonious assault and battery -- 3 to 6 years, to begin and take effect at the expiration of sentence imposed at No. 63.
[ 173 Pa. Super. Page 455]
The record before us does not indicate how these sentences were originally entered on the records of the penitentiary. Presumably they were so entered as to reflect the service of sentence imposed at No. 16, January Sessions, 1940, O. & T., as being concurrent with service of the remainder of the original maximum sentences from which he had been paroled, which was in accordance with the direction of the court in its imposition of sentence at No. 16. This would seem to be the fact because on April 12, 1950, the parole authorities gave notice to relator in which it was stated that it was desired to clarify the status of his sentences following the ruling of the Superior Court in Com. ex rel. Lerner v. Smith, 151 Pa. Super. 265, 30 A.2d 347. This notice advised him that the expiration date of his original maximum sentences after the violation of his parole was December 2, 1951. The notice further indicated that the new sentences had been compiled as a sentence of not less than 20 years nor more than 40 years, the minimum expiration date being given as December 2, 1971, and the maximum expiration date being designated as December 2, 1991.
On February 5, 1952, relator filed a petition for a writ of habeas corpus in the Court of Common Pleas of Allegheny County, No. 1266, April Term, 1952B.*fn1 He apparently contended therein that the sentence imposed at No. 16, January Sessions, 1940, O. & T., was illegal because it had been made to run concurrently with service of the balance of the original maximum sentences from ...