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COMMONWEALTH EX REL. MILLER v. MYERS. (03/18/59)

March 18, 1959

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



Appeal, No. 412, Oct. T., 1958, from order of Court of Common Pleas of Berks County, May T., 1958, No. 145, in case of Commonwealth of Pennsylvania ex rel. Charles B. Miller v. David N. Myers, Superintendent. Order affirmed.

COUNSEL

Charles B. Miller, Appellant, in propria persona.

Peter F. Cianci, Assistant District Attorney, and Frederick O. Brubaker, District Attorney, for appellee.

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

Author: Woodside

[ 189 Pa. Super. Page 165]

OPINION BY WOODSIDE, J.

This is an appeal from an order of the Court of Common Pleas of Berks County dismissing a petition for a writ of habeas corpus brought by a prisoner to secure his release.

The petitioner was sentenced five times in less than six years by the same judge in Berks County. January 8, 1952, petitioner was sentenced to a term of 4 to 23 months; June 30, 1952, he was paroled. October 18, 1952, he was arrested, and March 5, 1952, sentenced to a term of 2 to 5 years to begin at the expiration of his prior sentence. April 6, 1956, he was paroled on the 2 to 5 year sentence with 32 months remaining to be served. August 13, 1956, petitioner was again arrested and on September 13, 1956, was sentenced to a term of 1 1/2 to 3 years, to begin at the expiration of his 2 to 5 year sentence. All the above sentences were to the Berks County Jail.

June 10, 1957, he "walked away," (to use the language of the petitioner) from the jail, was returned the same day and on September 5, 1957, was sentenced for prison breach to the Eastern Correctional Diagnostic and Classification Center for a term of 1 1/2 to 3 years. The same day the prisoner escaped from custody in the Berks County Court House. Five days later he was captured in New York, and on November 7, 1957, was sentenced to the Eastern Correctional Diagnostic and Classification Center for another term of 1 1/2 to 3 years.

At the time of the last sentencing the judge directed that all petitioner's sentences of imprisonment should be served consecurively in the penitentiary in the order in which the unserved sentences were imposed.

The sentencing judge apparently concluded that by virtue of the Act of June 24, 1939, P.L. 872, § 309, as amended by the Act of July 29, 1953, P.L. 1445, 18

[ 189 Pa. Super. Page 166]

PS § 4309, he had the authority, not only to direct that the back time on the county prison sentences be served in the penitentiary, but also that he had the authority to designate the ...


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