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COMMONWEALTH EX REL. SALERNO v. BANMILLER. (03/18/59)

March 18, 1959

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



Appeal, No. 424, Oct. T., 1958, from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1958, No. 1092, in case of Commonwealth of Pennsylvania ex rel. James F. Salerno v. William J. Banmiller, Warden. Order affirmed.

COUNSEL

Paul N. Gardner, for appellant.

Charles L. Durham, 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., Hirt, Wright, Woodside, Ervin, and Watkins, JJ. (gunther, J., absent).

Author: Woodside

[ 189 Pa. Super. Page 158]

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 relevant facts are as follows: The petitioner, James F. Salerno, was sentenced in Philadelphia to a term of 1 to 3 years, effective April 9, 1954. He was received in the Eastern Correctional Diagnostic and Classification Center and from there transferred to the State Penitentiary at Graterford, from which he was released on parole, April 9, 1955. For an offense committed while on parole, he was sentenced June 15, 1956, to the Eastern Correctional Diagnostic and Classification Center to serve a term of 1 to 4 years. He was received in the center the same day and transferred to the State Penitentiary at Graterford September 9, 1956. When he was returned to prison, the Board of Parole and the prison authorities listed him as serving the term of 1 to 4 years to which he was sentenced while on parole. May 2, 1958, he was paroled from this sentence in order to commence serving his

[ 189 Pa. Super. Page 159]

"back time" as a parole violator on the original sentence of 1 to 3 years.

The petitioner has detainers filed against him for other offenses. The legality of these detainers has not been questioned by him in this proceeding.

The petitioner's basic contention is, in effect, that he should have been required to serve his back time as a parole violator before starting his second sentence, and since he was not required to do so, he cannot be required to serve any time as a parole violator.

The petitioner argues that section 21.1 added to the Act of August 6, 1941, P.L. 861, by the Act of August 24, 1951, P.L. 1401, 61 PS ยง 331.21a, provided at the time of his recommitment that "If a new sentence is imposed upon him to be served in the same institution from which paroled, then the service of the balance of said term originally imposed shall precede the commencement of the new term imposed for the latter crime." The section further provides: "If a new sentence is imposed upon him to be served in any institution other than the one from which ...


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