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COMMONWEALTH EX REL. DION v. MARTIN. (04/09/57)

April 9, 1957

COMMONWEALTH EX REL. DION, APPELLANT,
v.
MARTIN.



Appeal, No. 16, Feb. T., 1957, from order of Court of Oyer and Terminer of Columbia County, Oct. T., 1951, No. 3, in case of Commonwealth of Pennsylvania ex rel. Charles J. Dion v. F. G. Martin. Order affirmed.

COUNSEL

Charles Dion, appellant, in propria persona.

Howard R. Berninger, District Attorney, for appellee.

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

Author: Rhodes

[ 183 Pa. Super. Page 312]

OPINION BY RHODES, P.J.

The relator, Charles J. Dion, appeals from the refusal of his petition for writ of habeas corpus and related motions which were filed for the purpose of clarifying or correcting his sentence upon a conviction in the Court of Oyer and Terminer of Columbia County on a charge of armed robbery. He was tried and convicted of that crime on May 7, 1952, and on the same day he was sentenced to the Eastern State Penitentiary at Philadelphia, for an indefinite term of not less than five years nor more than fifteen years. The trial judge directed that the sentence be computed from November 14, 1951, the date on which relator was committed to the county prison to await trial.

The petition for writ of habeas corpus was captioned Commonwealth of Pennsylvania ex rel. Charles J. Dion v. F. G. Martin, Warden, Eastern State Penitentiary, in the Court of Common Pleas of Columbia

[ 183 Pa. Super. Page 313]

County, and filed on July 26, 1956. Subsequent entries were in the Court of Oyer and Terminer of Columbia County. We shall treat the appeal the same as if the pleadings had been properly docketed in the Court of Common Pleas of Columbia County and disposed of therein as they should have been. See Act of May 25, 1951, P.L. 415, § 1, 12 PS § 1901; Com. ex rel. Rogers v. Harris, 180 Pa. Superior Ct. 323, 325, 119 A.2d 862. The record below shall be transferred to the dockets of the Court of Common Pleas of Columbia County. Com. ex rel. Thomas v. Superintendent, Philadelphia County Prison, 372 Pa. 595, 598, 94 A.2d 732.

At the time of his conviction, relator was on parole from the State Penitentiary at Graterford, and he had approximately four and one-half years remaining to be served under the prior sentence.*fn1

Relator's first contention is that the prison authorities deprived him of due process of law when they entered the Columbia County sentence upon their records as commencing after the expiration of the prior sentence; and that the sentences should run concurrently as the sentencing judge, in imposing sentence on May 7, 1952, had designated the computation date of November 14, 1951. Where a convict on parole commits a crime punishable by imprisonment, for which he is convicted and sentenced to imprisonment, it is mandatory that that sentence be served in addition to the previous sentence; and, depending upon whether or ...


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