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COMMONWEALTH EX REL. HENDRICKSON v. MYERS. (11/13/56)

November 13, 1956

COMMONWEALTH EX REL. HENDRICKSON, APPELLANT,
v.
MYERS.



Appeal, No. 283, Oct. T., 1956, from order of Court of Common Pleas of Bucks County, No. 136, March T., 1956, in case of Commonwealth of Pennsylvania ex rel. Robert E. Hendrickson v. David N. Myers, Warden, Graterford State Penitentiary. Order affirmed.

COUNSEL

Robert E. Hendrickson, appellant, in propria persona.

Donald W. VanArtsdalen, District Attorney and J. Justus Bodley, Assistant District Attorney, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).

Author: Hirt

[ 182 Pa. Super. Page 170]

OPINION BY HIRT, J.

These are the facts, taken from relator's petition in this habeas corpus proceeding: Relator was arrested on August 10, 1946, on a number of separate charges of burglary and the larceny of an automobile and other property. While awaiting trial on these charges he escaped from the Bucks County Prison on August 20, 1946 but was recaptured the same day but not before he had stolen another automobile from a private garage. These offenses are the subjects of Bills 94 and 90. Thereafter on September 4, 1946, relator entered pleas of guilty in open court to four indictments embodying the charges upon which he was originally arrested and on additional bills charging him with prison breach and burglary. The late Judge CALVIN S. BOYER who received the pleas sentenced him on Bill 91, one of the burglary charges, to a term of imprisonment in the Eastern State Penitentiary of not less than 3 nor

[ 182 Pa. Super. Page 171]

    more than 10 years. He sentenced relator also to a further and consecutive term, in the Eastern State Penitentiary of not less than 1 nor more than 2 years on Bill 94, the prison breach charge. Sentence was suspended on all other bills to which relator had pleaded guilty.

The two sentences apparently were lumped for parole purposes in accordance with the Act of June 25, 1937, P.L. 2093, 19 PS § 897, and between September 4, 1946, the date of sentence, and April 11, 1956 relator was twice paroled by the Pennsylvania Board of Parole, once on February 12, 1951 and again on June 23, 1954. He violated the conditions of these parole orders and in each instance was returned to prison. On the first occasion he was at least a technical parole violator. On September 13, 1955, during the period of his second parole he was convicted of violation of the Uniform Firearms Act of May 21, 1943, P.L. 485, 18 PS § 4628, et seq., and was sentenced to the Bucks County Prison for 30 days. After serving this sentence he was returned to the penitentiary as a convicted parole violator to serve the remaining terms of his 1946 sentences. These sentences, with credits for all time actually served plus the "street time" of the first parole, as computed on the prison records will expire on December 3, 1959. Cf. Act of August 24, 1951, P.L. 140u, 6u PS § 331.21a.

On relator's petition in this proceeding, filed on April 11, 1956, the respondent was ruled to show cause why a writ of habeas corpus should not issue. On May 11, 1956, the date set for hearing, relator was brought into court. He there was represented by counsel of his own choice and he testified at length.

In his petition he had contended that prison breach, a misdemeanor, is punishable only by simple imprisonment. And ...


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