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COMMONWEALTH EX REL. NAGLE v. MYERS. (03/24/60)

March 24, 1960

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



Appeal, No. 41, Feb. T., 1960, from order of Court of Common Pleas of Wyoming County, March T., 1959, No. 69, in case of Commonwealth of Pennsylvania ex rel. Carl Nagle v. David N. Myers, Superintendent. Order affirmed.

COUNSEL

Joseph N. Bongiovanni, Jr., for appellant.

Roy A. Gardner, District Attorney, for appellee.

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

Author: Wright

[ 191 Pa. Super. Page 496]

OPINION BY WRIGHT, J.

Carl Nagle has appealed from an order of the Court of Common Pleas of Wyoming County dismissing his petition for a writ of habeas corpus.

On June 25, 1938, appellant entered pleas of guilty to five bills of indictment in Wyoming County. On Bill No. 41 January Sessions 1938, charging breaking, entering, and larceny, he was sentenced for a term of ten to twenty years. On Bill No. 42 January Sessions 1938, charging breaking, entering, and larceny, he was sentenced for a term of ten to twenty years at the expiration of the sentence on Bill No. 41. On Bill No. 43 January Sessions 1938, charging larceny, he was sentenced for a term of one to years at the expiration of sentence on Bill No. 42. On Bill No. 4 October Sessions 1938, charging larceny of automobile, he was sentenced for a term of two to four years at the expiration of sentence on Bill No. 43. On Bill No. 5 October Sessions 1938, charging jailbreak, he was sentenced for a term of one to two years at the expiration of sentence on Bill No. 4. Because the sentences on Bills Nos. 41 and 42 exceeded the maximum provided by law, they were subsequently reduced by the court below to minimums of five and maximums of ten years.

At the time of his pleas in Wyoming County, June 25, 1938, appellant was supposedly on parole from the Eastern State Penitentiary as a result of prior sentences in Luzerne County. However, in Commonwealth ex rel. Nagle v. Smith, 154 Pa. Superior Ct. 392, 36 A.2d

[ 191 Pa. Super. Page 497175]

, it was held that one of appellant's Luzerne County sentences was void, and that appellant was actually not on parole, having served his maximum term. On March 3, 1944, in the opinion in that case, this court said: "Consequently, when relator was arrested and committed to the penitentiary on June 25, 1938, for crimes committed in Wyoming County, he was not on parole from any previous sentence, and therefore he was not a parole violator... The sentences imposed upon him by the Court of Quarter Sessions of Wyoming County became operative the day they were imposed - June 25, 1938... and it is to be recorded that he is serving these sentences from that date".

On June 30, 1948, appellant's minimum sentence was commuted to ten years, six months, and fifteen days, expiring July 17, 1948. On September 15, 1948, he was paroled to remain on parole until December 30, 1965. While on parole, appellant perpetrated two additional offenses. On November 1, 1951, he was committed to the Montgomery County prison on a charge of breaking, entering, and larceny. On July 11, 1952, he was sentenced on that charge by the Montgomery County Court for a term of one year in the Montgomery County prison with a detainer lodged against him from Bucks County. On October 28, 1952, appellant was released from the Montgomery County prison and committed to the Bucks County prison. On June 9, 1953, he was sentenced by the Bucks County court on Bill No. 66 January Sessions 1953, charging burglary, larceny, and receiving stolen goods, for a term of two and one-half to five years, to be computed from October 28, 1952. Appellant was ...


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