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COMMONWEALTH EX REL. O'NEILL v. BANMILLER. (03/18/59)

March 18, 1959

COMMONWEALTH EX REL. O'NEILL, APPELLANT,
v.
BANMILLER.



Appeal, No. 52, Oct. T., 1959, from order of Court of Common Pleas No. 7 of Philadelphia County, June T., 1958, No. 2101, in case of Commonwealth of Pennsylvania ex rel. Bernard O'Neill v. William J. Banmiller, Warden. Order affirmed.

COUNSEL

Joseph Patrick Gorham, for appellant.

Domenick Vitullo, Assistant District Attorney, with him Juanita Kidd Stout, Assistant District Attorney, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Woodside

[ 189 Pa. Super. Page 168]

OPINION BY WOODSIDE, J.

This is an appeal from the order of the court below dismissing a petition for a writ of habeas corpus brought by a prisoner seeking his release.

The prisoner, Bernard O'Neill, was sentenced in Philadelphia to the Eastern State Penitentiary for a

[ 189 Pa. Super. Page 169]

    term of 2 to 4 years effective January 25, 1952. He was paroled January 25, 1954, from the State Penitentiary at Graterford.

He was arrested August 18, 1955, for an offense committed while on parole, and was sentenced on December 21, 1955, in Philadelphia, to the Eastern Correctional Diagnostic and Classification Center for a term of 2 to 4 years, to be computed from August 18, 1955. He was subsequently sent by the prison authorities to the State Penitentiary at Graterford.

The Board of Parole applied the time he started serving in 1 955 to the last sentence, and not to time due on the original sentence. The board did this upon the assumption that the prisoner was not sentenced "to the same institution from which paroled." See Act of August 24, 1951, P.L. 1401, adding section 21.1 to the Act of August 6, 1941, P.L. 861, 61 PS ยง 331.21a. If the new sentence imposed upon the prisoner was to be served in the same institution from which paroled, section 21.1, supra, required at the time he was returned as a parole violator, that the service of the time on the original sentence should be served first.

On August 30, 1958, the petitioner was paroled from his last sentence to start serving as a parole ...


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