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COMMONWEALTH EX REL. GODFREY v. BANMILLER. (06/26/61)

June 26, 1961

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



Appeal, No. 279, Jan. T., 1961, from order of Superior Court, Oct. T., 1960, No. 313, affirming order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1959, No. 1644, in case of Commonwealth ex rel. Eugene Godfrey v. William J. Banmiller, Warden. Order affirmed.

COUNSEL

Herman I. Pollock, Defender, for appellant.

Arlen Specter, Assistant District Attorney, with him Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Eagen

[ 404 Pa. Page 402]

OPINION BY MR. JUSTICE EAGEN.

This is an appeal from a decision of the Superior Court affirming an order of the lower court dismissing appellant's petition for a writ of habeas corpus.

The facts are not in dispute. On February 27, 1934, Godfrey, the appellant, pleaded guilty in the Philadelphia county court to an indictment (No. 845 February Sessions, 1934) charging "entering with an intent to steal." He was sentenced to a term of not less than four years nor more than eight years in the Eastern State Penitentiary to commence at the expiration of a sentence he was then serving of from three to six years. He commenced serving this sentence on February 27, 1937. After serving four years and five months, he was paroled on July 27, 1941.

While still on parole, he committed a burglary and was returned to the penitentiary as a parole violator on August 21, 1941, to serve the balance of the sentence imposed under indictment No. 845, that being a period of three years and seven months. He pleaded guilty to the burglary indictment (No. 463 August Sessions, 1941), and on August 29, 1941, was sentenced by a judge, since deceased, to serve five to ten years in the Eastern State Penitentiary "to run concurrently with sentence now being served." The balance of the sentence imposed under indictment No. 845, was completed on March 21, 1945. On that date, he commenced serving the sentence imposed on indictment No. 463. After serving five years, he was again placed on parole on March 21, 1950. Subsequently, on February 13, 1959,

[ 404 Pa. Page 403]

    he was returned to the penitentiary as a convicted parole violator to serve the remaining five years of the sentence imposed under indictment No. 463. Thus, he will be incarcerated until February 13, 1964, unless he is again paroled. It is this imprisonment that the appellant seeks to avoid.

The basis of the petition for the writ of habeas corpus, now in issue, is that the sentence imposed under indictment No. 463 was not made to run concurrently, although the judge so stipulated. It is urged that the prison authorities allegedly changed the purport and effect of the court's sentence without authority in law; that since the sentence was illegal, the case should be remanded to the lower court for the imposition of a correct legal sentence in accordance with the sentencing judge's intention or that the appellant be discharged from further imprisonment.

The Act of June 22, 1931, P.L. 862, § 1, amending the Act of June 19, 1911, P.L. 1055, § 10, 61 PS (Supp.) § 305, categorically requires that a person who is sentenced to imprisonment following a conviction of a crime committed, while still on parole under a sentence previously imposed, must serve both the remaining portion of the old sentence and that imposed for the new or subsequent crime consecutively. The Act of 1931 provides as follows: "If any convict released on parole, as provided for in this act, shall, during the period of his or her parole, or while delinquent on said parole, commit any crime punishable by imprisonment for which he or she is at any time thereafter convicted in any court of record and sentenced to any place of confinement other than the penitentiary from which he or she was released on parole, such convict shall, ...


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