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COMMONWEALTH EX REL. THOMPSON v. DAY. (12/28/56)

December 28, 1956

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



Appeal, No. 217, April T., 1956, from order of Court of Common Pleas of Allegheny County, Oct. T., 1955A, No. 837, in case of Commonwealth of Pennsylvania ex rel. Harold S. Thompson v. Charles S. Day, Warden. Order affirmed.

COUNSEL

Hymen Schlesinger, for appellant.

Frank P. Lawley, Jr., Deputy Attorney General, with him Herbert B. Cohen, Attorney General, for appellee.

Before Rhodes, P.j., Hirt, Gunther, and Carr, JJ. (wright, Woodside, and Ervin, JJ., absent).

Author: Hirt

[ 182 Pa. Super. Page 645]

OPINION BY HIRT, J.

In the Court of Oyer and Terminer of Allegheny County relator was convicted of rape and robbery. He was sentenced on this conviction to a term of imprisonment in the Western State Penitentiary of from seven and one-half to fifteen years, effective as of March 7, 1949. While serving this sentence he was convicted in the quarter sessions on a charge of riot at No. 554 May Sessions, 1953 and was sentenced to imprisonment in the Western State Penitentiary for a term of one and one-half to three years, to take effect upon the expiration of the minimum term of the prior sentence for rape and robbery.

On relator's present petition for a writ of habeas corpus, his claim was that his conviction and sentence for prison riot were unlawful, and he prayed for his discharge from imprisonment on that ground. In the meantime he had been transferred to the State Penitentiary at Graterford. A rule was granted on relator's petition returnable August 31, 1955. The Attorney General of the Commonwealth moved to dismiss the petition on the ground that it did not state a cause of action and therefore was not self sustaining; the District Attorney of Allegheny County joined in the motion. After hearing before the lower court on September 22, 1955 the rule was discharged and the court by order dated April 26, 1956 dismissed relator's petition thereby denying relief on habeas corpus. The present appeal is from that order.

The appeal raises three main issues.

[ 182 Pa. Super. Page 6461]

. It is a complete answer, to the attack upon the order, that when relator petitioned for the writ he was serving the admittedly valid sentence for rape and robbery. The minimum term of that sentence had not expired and he had not yet begun to serve the sentence imposed for riot. The petition therefore was premature and well might have been dismissed without prejudice, for that reason alone. Com. ex rel. Lewis v. Ashe, Warden, 335 Pa. 575, 7 A.2d 296; Com. ex rel. Toliver v. Ashe, Warden, 336 Pa. 206, 8 A.2d 541. An application for a writ of habeas corpus is premature if made before the expiration of an admittedly valid minimum sentence. Com. ex rel. Sloan v. Ashe, Warden, 133 Pa. Superior Ct. 32, 1 A.2d 788. The order of the court however does not rest on that ground alone. The transcript of what occurred at the hearing covers 85 typewritten pages and demonstrates that Judge ALPERN, before whom the hearing was had, with tolerance and much patience explored every phase of the application on the merits and found no issues of fact requiring an award of the writ and the taking of testimony.

2. Relator in his petition alleges that the prison authorities denied him the opportunity to appeal his conviction of riot. The denial of the right of appeal by one convicted of crime constitutes a violation of the equal protection clause of the Fourteenth Amendment, Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262. Here however, before the lower court at the hearing, it was clearly indicated that relator's rights were not invaded. On the contrary from the admissions of appellant's counsel, however evasively and reluctantly ...


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