June 13, 1963
COMMONWEALTH EX REL. JOHNSON, APPELLANT,
Appeal, No. 31, April T., 1963, from order of Court of Common Pleas of Washington County, Sept. T., 1962, No. 266, in case of Commonwealth ex rel. Lewis F. Johnson v. James F. Maroney, Superintendent. Order reversed.
Lewis F. Johnson, appellant, in propria persona.
Michael A. Hanna, District Attorney, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
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OPINION BY RHODES, P.J.
This is an appeal by relator from an order of the Court of Common Pleas of Washington County refusing his petition for a writ of habeas corpus without a hearing.
Relator was arrested on September 5, 1959, on six counts of burglary and larceny, and pleaded guilty to said charges on October 13, 1959, at Nos. 203, 204, 205, and 206, September Sessions, 1959, in the Courts of Quarter Sessions and Oyer and Terminer of Washington County. He was then sentenced to the Western State Penitentiary to serve a term of four to eight years on each count, the sentences to run concurrently. The court stated that the sentences were to begin on September 5, 1959, the date of relator's arrest. Following conviction and sentences, relator was returned to the same institution as a parole violator on a previous commitment. Relator was informed by the prison officials that he was required to serve the balance of his previous sentence, under which there remained a period of
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twenty-three months and twenty-seven days, before the other sentences would begin to run. See Com. ex rel. Smith v. Hendrick, 196 Pa. Superior Ct. 289, 291, 175 A.2d 92.
In his petition for writ of habeas corpus relator contends (1) that the prison officials had no legal right to change the effective date of his sentences imposed on October 13, 1959; (2) that the record of the criminal proceedings show that his pleas of guilty were entered without an intelligent waiver of counsel; (3) and that he was not advised of his constitutional rights to counsel.
Relator's first contention is without merit. Relator is required by law to serve the balance of the unexpired portion of the first sentence before commencing service of the sentence for the crimes committed while on parole. Act of June 19, 1911, P.L. 1055, § 10, as amended, 61 PS § 305; Act of August 6, 1941, P.L. 861, as amended, 61 PS § 331.21a.*fn1 The manner and order of service of imprisonment having been specified by law, the courts are powerless to change it. Com. ex
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rel. Godfrey v. Banmiller, 404 Pa. 401, 404, 171 A.2d 755; Com. ex rel. Wright v. Maroney, 201 Pa. Superior Ct. 118, 191 A.2d 866.
In the present habeas corpus proceeding the District Attorney did not file an answer to the relator's petition. Therefore relator's averment of circumstances entitling him to counsel on his pleas of guilty stands undenied. Orderly proceedings require that a district attorney file an answer to habeas corpus petitions in criminal cases so that relevant factual and legal questions may be presented to the court.
We note that no hearing was held on this petition. Whether or not a prisoner should be produced for a hearing in a habeas corpus proceeding is determined by the issue raised in the particular case. Com. ex rel. Gaurich v. Keenan, 181 Pa. Superior Ct. 619, 622, 623, 124 A.2d 144.
We believe that the District Attorney of Washington County must file an answer to the habeas corpus petition for a proper determination of the vital issue raised below, and that a hearing should be held to ascertain the specific issues of fact.
The order of the Court of Common Pleas of Washington County refusing the writ is reversed, and the case is remanded for further proceedings consistent with this opinion.