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

THE SUPERIOR COURT OF PENNSYLVANIA


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 not the second sentence is to be served in the institution from which the convict was paroled, it either precedes or follows the service of the prior sentence.

[ 183 Pa. Super. Page 314]

Act of June 19, 1911, P.L. 1055, § 10, as amended, 61 PS § 305; Act of August 24, 1951, P.L. 1401, § 5, 61 PS § 331.21a. The sentences may not run concurrently; neither the court nor the prison authorities may alter this clear mandate from the Legislature. Com. ex rel. Westwood v. Gackenbach, 169 Pa. Superior Ct. 637, 639, 84 A.2d 380. Relator admits that this is the established law, but asserts that, since the trial judge fixed the subsequent sentence to run from November 14, 1951, the court alone has the power to alter the beginning date of the sentence so that it would commence after the expiration of the prior sentence. In disposing of this contention the lower court stated: "... we naturally directed in the Order that the jail sentence imposed should be computed from November 14, 1951, not for the purpose of indicating that the sentence imposed shall run concurrently with a non-served sentence as a parole violator, but for the purpose of giving the defendant the benefit of the almost six months period of time served between November 14, 1951, and May 7, 1952, that he served in the Columbia County Jail." This was in accord with the Act of May 28, 1937, P.L. 1036, § 1, 19 PS § 894, which provides that a sentence be computed from the date of commitment for the offense for which the sentence is imposed. Relator was a parolee at the time, and the only effect of designating the date of first commitment as the computation date of the last sentence was to fix the credit to be allowed him on the service of that sentence. There is no basis for the argument that the sentence be served concurrently with the unexpired term of the prior sentence. Com ex rel. Lerner v. Smith, 151 Pa. Superior Ct. 265, 273, 30 A.2d 347; Com. ex rel. Harman v. Burke, 171 Pa. Superior Ct. 547, 553, 91 A.2d 385; Com. ex rel. Geisler v. Claudy, 172 Pa. Superior Ct. 281, 283, 93 A.2d 873; Com. ex

[ 183 Pa. Super. Page 315]

    sentence. The prison authorities properly so marked their records.

Disposition

The order is affirmed.


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