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COMMONWEALTH EX REL. LEARY v. DAY. (07/21/55)

July 21, 1955

COMMONWEALTH EX REL. LEARY, APPELLANT,
v.
DAY.



Appeal, No. 40, Oct. T., 1955, from order of Court of Quarter Sessions of Delaware County, March T., 1954, No. 1995, in case of Commonwealth of Pennsylvania ex rel. Raymond Leary v. Charles G. Day, Warden, Eastern State Penitentiary. Order affirmed.

COUNSEL

Raymond Leary, appellant, in propria persona.

Paul R. Sand, Assistant District Attorney, Joseph E. Pappano, First Assistant District Attorney and Raymond R. Start, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Hirt

[ 178 Pa. Super. Page 584]

OPINION BY HIRT, J.

On May 19, 1954 relator filed his petition in the lower court for a "Writ of Error." According to its intent the petition was treated as an application for a writ of habeas corpus for the correction of an alleged error in his sentence for burglary and larceny under

[ 178 Pa. Super. Page 585]

    which he was then confined in the Eastern State Penitentiary. In his petition he also complained that the lower court, in error, sentenced him to imprisonment in the county prison on his conviction of prison breach for a term to be computed from the expiration of his penitentiary sentence. He contends that under the law he is entitled to have both sentences run concurrently. Habeas corpus may be invoked for the correction of sentences which are not in conformity with the law. Commonwealth ex rel. McDevitt v. Burke, 166 Pa. Superior Ct. 194, 70 A.2d 663. The writ was awarded and relator was present at the hearing thereon, with full opportunity to testify and to present his views on the legal issues involved. After full consideration of the facts as developed at the hearing the court remanded relator to custody in the penitentiary. The order will be affirmed.

The facts are not in dispute. On April 25, 1952 relator pleaded guilty to bill No. 48 June Sessions, 1952, charging burglary and larceny. He was sentenced the same day to the Delaware County Prison for a term of from six to eighteen months to be computed from April 1, 1952. He was released on parole on October 1, 1952, after serving his minimum sentence. On April 28, 1953 while still on parole he was recommitted to the county prison and was charged with various other criminal acts, among them, burglary and larceny in each of two bills, Nos. 329 and 330 June Sessions, 1953. He pleaded guilty to these charges and on June 17, 1953 was sentenced to the county prison on bill 329 for a term of not less than one and one-half nor more than three years to be computed from October 1, 1953, the date of the expiration of the maximum sentence imposed on bill 48, June Sessions, 1952. Sentence on bill 330 was suspended. On June 20, 1953, relator escaped from the county prison but was apprehended

[ 178 Pa. Super. Page 586]

    almost immediately and was charged to No. 60 September Sessions, 1953, with prison breach. He pleaded guilty to the charge and at the same time requested the court to change the sentence on bill 329 to imprisonment in the Eastern State Penitentiary instead of in the county prison as previously imposed. Pursuant to this request Judge BRETHERICK set aside the prior sentence and resentenced relator on bill 329 to imprisonment in the above penitentiary but increased the penalty to imprisonment for a term of from two to four years from April 28, 1953. Relator was then sentenced on bill 60, for prison breach, to undergo imprisonment in the county prison for one year.

There is no merit in relator's contention that when the original sentence for a term of one and one-half to three years was set aside and relator was resentenced on bill 329 the court lacked the power to increase the term of imprisonment to from two to four years. Both sentences were within the June term of the court in 1953. As to the place of commitment the resentencing was at relator's request and the court, during the term at which he was convicted, had the authority to increase the punishment originally imposed. ...


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