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COMMONWEALTH EX REL. TREVETHAN v. MYERS. (06/10/59)

June 10, 1959

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



Appeal, No. 168, Oct. T., 1959, from order of Court of Common Pleas of Montgomery County, Nov. T., 1958, No. 273, in case of Commonwealth of Pennsylvania ex rel. Sidney Trevethan v. Myers, Superintendent. Order affirmed.

COUNSEL

Sidney Trevethan, appellant, in propria persona.

Jules Bell, Assistant District Attorney, and Bernard E. DiJoseph, District Attorney, for appellee.

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

Author: Woodside

[ 189 Pa. Super. Page 622]

OPINION BY WOODSIDE, J.

This is an appeal from the refusal of the Court of Common Pleas of Montgomery County to grant a writ of habeas corpus to a prisoner in a State penal institution.

The prisoner was sentenced in Montgomery County on March 6, 1954, to a term of 2 to 5 years, and committed to the Eastern Classification and Diagnostic Center. From there he was transferred by the prison authorities to the State Penitentiary at Rockview, and after serving 26 months of his sentence was paroled from that institution.

While on parole, he committed another offense for which he was sentenced in Montgomery County on February 15, 1957, to serve one to two years "to commence and be computed from the expiration of any time served for violation of parole." He was committed to the Eastern Classification and Diagnostic Center and transferred by the prison authorities from there to the State Penitentiary at Graterford where he is now imprisoned.

Because the prisoner was paroled from Rockview and sentenced to the Eastern Center, the Board of Parole and the prison authorities, believing that they were required to do so under section 21.1(a) of the Parole Act of 1941, added thereto by section 5 of the

[ 189 Pa. Super. Page 623]

Act of August 24, 1951, P.L. 1401,*fn1 entered the petitioner on his last sentence. See Commonwealth ex rel. Salerno v. Banmiller, 189 Pa. Superior Ct. 156, 149 A.2d 501 (1959).

After serving a year of this sentence, the prisoner petitioned the Board of Parole for a parole to start serving his back time. The board refused the petition and required him to serve the two years maximum sentence last imposed. Having served this, the petitioner is now serving his "back time" on the five year sentence. Therefore, the Board of Parole now has the legal right to release him from the penitentiary on parole at its discretion. After the sentence was imposed on the petitioner for the last offense, he had 34 months back time*fn2 and 2 years maximum on the new sentence, or a total minimum of 1 year and a total maximum of 4 years 10 months. Computed from February 1957 his maximum sentence will not expire until the latter part of 1961. Until that time the petitioner is legally detained in prison and is not ...


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