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COMMONWEALTH EX REL. VIA v. BANMILLER. (11/14/58)

November 14, 1958

COMMONWEALTH EX REL. VIA, APPELLANT,
v.
BANMILLER.



Appeal, No. 295, Oct. T., 1958, from order of Court of Common Pleas of Lebanon County, Dec. T., 1957, No. 268, in case of Commonwealth of Pennsylvania ex rel. Melvin Via v. William J. Banmiller, Warden. Order affirmed.

COUNSEL

Melvin Via, appellant, in propria persona.

Robert Sullivan, Assistant District Attorney, for appellee.

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

Author: Ervin

[ 188 Pa. Super. Page 125]

OPINION BY ERVIN, J.

This is an appeal from an order of the Honorable A. H. EHRGOOD, President Judge of the Court of Common Pleas of Lebanon County, dismissing the petition for a writ of habeas corpus after a hearing at which the relator and his counsel were present. prisoners; and to No. 55 December Sessions, 1955 was arrested and imprisoned in the Lebanon County jail on a charge of pointing a deadly weapon, to No. pleaded guilty to 54 and was sentenced to serve in the Court of Quarter Sessions of Lebanon County. to be computed from his original commitment on August awaiting the disposition of this charge, additional indictments were filed to No. 27 December Sessions, 1955 (hereinafter called "27"), consisting of three counts of larceny, malicious mischief and conveying liquor to prisoners; and to No. 55 December Sessions, 1955 (hereinafter called "55"), of being an accessory before the fact of a prison breach. On October 26, 1955 relator pleaded guilty to 54 and was sentenced to serve not less than 3 months and not more than 15 months, to be computed from his original commitment on August 2, 1955, in the Lebanon County jail. On October 27, 1955 relator pleaded guilty to indictment 27 and was sentenced to pay one-half of the costs of prosecution and be imprisoned in the Eastern State Penitentiary for a period of not less than 1 year and not more

[ 188 Pa. Super. Page 126]

    than 2 years; also on October 27, 1955 the relator pleaded guilty to 55 and was sentenced to "pay the costs of prosecution and that he be imprisoned in the Eastern State Penitentiary for a period of not less than one and one-half years and not more than three years, said sentence to commence at the expiration of the original sentence and any other sentences previously imposed which remained to be served at the time of the offense of being an accessory before the fact of a prison breach was committed." On October 27, 1955 the sheriff of Lebanon County transported the relator to the Eastern State Penitentiary, before the relator had served the balance of his sentence on 54. On February 11, 1956 the court below made an additional order to 54 directing the return of relator to the Lebanon County prison for service of the remaining sentence imposed on 54. Following that order, relator was recommitted to the Lebanon County prison, where he remained until March 12, 1956, at which time he was redelivered to the Eastern State Penitentiary. The record of the penitentiary originally listed relator's time as running from October 27, 1955 on 27 but as now listed it is running from March 12, 1956.

Relator contends that the language used by the court below on sentence 55 failed to create a consecutive term and therefore it is void and he is now being illegally confined because of the expiration of the maximum terms on sentences 54 and 27. We cannot agree with this contention. The court's sentence on 54 was entirely proper since the court began this sentence from the date of commitment, to wit: August 2, 1955: Act of May 28, 1937, P.L. 1036, § 1, 19 PS § 894. On October 26, 1955, when sentence 54 was imposed, relator was not "undergoing imprisonment under a sentence imposed for any other offense or offenses. ..." Therefore, the relator being in custody in default of

[ 188 Pa. Super. Page 127]

    bail for offense 54, it was mandatory under the above act that sentence 54 be computed from the date of commitment. This sentence normally would have expired on November 2, 1956, the end of the maximum term of 15 months. A sentence for an indefinite term must be deemed a sentence for the maximum term: Com. v. Kalck, 239 Pa. 533, 87 A. 61; Com. ex rel. Carmelo v. Smith, 347 Pa. 495, 32 A.2d 913.

The sentence imposed by the court below in 27 commenced on October 27, 1955, the date when it was imposed, and expired at the end of the maximum term of two years on October 27, 1957. Under § 1 of the Act of May 28, 1937, supra, the sentence necessarily began to run on the date of imposition since the court failed to state when the ...


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