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COMMONWEALTH EX REL. COOPER v. BANMILLER. (11/16/60)

November 16, 1960

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



Appeal, No. 294, Oct. T., 1960, from order of Court of Common Pleas of Chester County, Miscellaneous Docket No. 11627, in case of Commonwealth ex rel. Corbet Cooper v. William J. Banmiller, Warden. Order, as modified, affirmed.

COUNSEL

Corbet Cooper, appellant, in propria persona.

Samuel J. Halpren, District Attorney, for appellee.

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

Author: Wright

[ 193 Pa. Super. Page 525]

OPINION BY WRIGHT, J.

On December 28, 1959, in the Court of Common Pleas of Chester County, Corbet Cooper presented a petition for writ of habeas corpus. Judge LICHTENFELD ordered a hearing on January 27, 1960, and directed that the petitioner be produced to testify. On January 23, 1960, the Superintendent of the Eastern State Penitentiary filed an answer. Following the hearing and the filing of the notes of testimony, an order was entered on February 1, 1960 dismissing the petition. Cooper has appealed.

The record discloses that, on September 13, 1937, appellant was sentenced in Chester County on Bills Nos. 144 and 145 August Term 1937, charging robbery, to serve a term of ten to twenty years in the Eastern

[ 193 Pa. Super. Page 526]

State Penitentiary. He was paroled on September 13, 1947, at the expiration of his minimum sentence. While on parole, appellant was involved in a robbery in Delaware County and, in February 1949, was sentenced on Bill No. 391 March Term 1949, to serve a term of two to four years in the Delaware County prison. Appellant escaped from this institution on December 2, 1950, and was thereafter apprehended and returned. On January 4, 1951, he was sentenced in Delaware County on Bill No. 69 March Term 1951, charging prison breach, to serve a term of two to four years in the Eastern State Penitentiary, effective December 11, 1950, the date of his return to the Delaware County prison. At the same time he was sentenced to serve the balance of the sentence owing on Bill No. 391 March Term 1949, the place of confinement to be the Eastern State Penitentiary, and the sentence to be served at the expiration of the sentence on Bill No. 69 March Term 1951. On April 2, 1951, appellant was sentenced in Montgomery County on Bill No. 138 November Term 1950, charging robbery, to serve a term of five to ten years in the Eastern State Penitentiary, effective at the expiration of the Delaware County sentences. This offense was committed during the period between appellant's escape from the Delaware County prison and his apprehension.

On December 10, 1953, appellant was granted a parole on Bill No. 69 March Term 1951, and began serving the balance of the sentence owing on Bill No. 391 March Term 1949. On March 19, 1954, he was paroled on that sentence, and began serving the sentence imposed on Bill No. 138 November Term 1950. On March 19, 1959, he was paroled on that sentence and began serving the unexpired portion of the sentence on Bills Nos. 144 and 145 August Term 1937. At the present time he is being required to serve the back time on this sentence.

[ 193 Pa. Super. Page 527]

The question involved on this appeal is stated by appellant as follows: "Where a parolee is returned to the penitentiary as a convicted violator, can he legally be made to serve the latter sentence while the parole time is held in abeyance?" He contends that the parole time owing on the 1937 Chester County sentence should have begun on the date of his return to the penitentiary, and not after he was required to serve the several subsequent sentences. At the hearing in the court below, appellant stated that the purpose for which he filed the petition for habeas corpus was to correct the order in which he should have served his sentences, and took the position that, if the order of service which he believed to be correct would have been followed, he would still have the Montgomery County sentence to serve.*fn1 However, he ...


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