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decided: November 10, 1965.


206 Pa. Super. 528.

Supplementary Opinion by Montgomery, J. Concurring Opinion by Wright, J.

Author: Montgomery

[ 206 Pa. Super. Page 530]

Supplementary Opinion by Montgomery, J., November 10, 1965:

As a supplement to our opinion filed October 7, 1965, in which we held Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965),*fn1 as governing the present case, we deem it advisable to discuss our reasons.

The factual situations in the two cases are not identical. In Stevens the relator was serving a sentence which he was not attacking. His attack was aimed at a later sentence which had not begun to run. In such cases the rule existing before Stevens is stated therein

[ 206 Pa. Super. Page 531]

    as follows, "Under such circumstances the rule has been that since the writ of habeas corpus is said to test only the legality of present restraint, the petition must be dismissed as premature because the propriety of the present confinement is unquestioned."

After a learned discourse on the history of the Great Writ with attention given to the manner in which the rigidity of the rule previously set forth has been eased, particularly in cases where improper or excessive sentences are corrected, the Supreme Court states:

"Reason accords with necessity and practicality in urging that we make the conditions under which the writ will issue conform with its current scope in cases of the instant sort. The history of the writ, its traditional use, and its recent development all indicate the writ's flexibility as a procedural vehicle for collaterally reaching fundamental defects in the administration of criminal justice. A refusal to permit the employment of the writ in the present circumstances would result in placing central emphasis on the history of the writ rather than upon its suitable employment in maintaining the balance 'nice, clear and true between the State and the accused.'

"Confident of our power to mold the Great Writ to the exigencies of the times, and mindful of present necessities, we conclude that the prematurity concept should be modified in circumstances such as those present here and that the writ of habeas corpus may be sought in post-conviction attacks on the validity of a final judgment of conviction even though the petitioner has not yet begun to serve the sentence imposed."

In the present case Alexander is attacking the first sentence on which he is on "constructive" parole,*fn2 while

[ 206 Pa. Super. Page 532]

    serving the second or later sentence. If his second sentence had not been to a correctional institution under the supervision of the Department of Justice as his first had been the situation would have been similar to Stevens for the reason that, under those circumstances, he would have been compelled to serve the second sentence before doing his back time on the first. Section 21.1 of the Act of August 6, 1941, P. L. 861, as amended, 61 P.S. § 331.21a. Furthermore, had relator not been reparoled he would not have commenced serving his second sentence and the foregoing rule would not have been applicable since he would have been in custody under the sentence he is attacking. However, he is again on parole from that sentence and the effect of that parole must be considered.

The question which relator seeks to raise is certainly not moot, because a prisoner, though on parole, is nevertheless still serving his sentence. The maximum sentence is the only portion of the sentence which has legal validity. Commonwealth ex rel. Carmelo v. Smith, 347 Pa. 495, 32 A.2d 913 (1943), citing Commonwealth v. Kalck, 239 Pa. 533, 87 A. 61 (1913). While parole is a provisional release and an amelioration

[ 206 Pa. Super. Page 533]

    of punishment, it may be said to be, in legal effect, an imprisonment. It is a means of keeping a watchful eye on the convict outside the prison walls. Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1942); Commonwealth ex rel. Forsythe v. Myers, 200 Pa. Superior Ct. 636, 189 A.2d 920 (1963); Commonwealth ex rel. Lerner v. Smith, 151 Pa. Superior Ct. 265, 30 A.2d 347 (1943).

Prior to Section 21.1 of the Act of August 6, 1941, 61 P.S. § 331.21a, a parolee who violated his parole by committing another crime during the period of his parole was not eligible for a reparole. This section of the Act of 1941 gives the Parole Board the right to reparole persons who have been recommitted after having been convicted of crimes while on parole. However, we note that the grant of a reparole in the present case would seem to create a situation where the parolee may be considered as serving two sentences concurrently.*fn3 This is in violation of the well-established rule, and the provisions of the statute, that a convicted parole violator may not serve his current sentence and his back time on a prior sentence concurrently. Commonwealth ex rel. Haun v. Cavell, 190 Pa. Superior Ct. 346, 154 A.2d 257 (1959). This raises the question whether the second sentence may commence before the expiration of parole on the first. However, we deem it unnecessary to decide that question at this time.

If relator's second sentence is not properly in effect, he is still in custody under his first sentence although on "constructive" parole, and the pre- Stevens rule set forth in the early part of this opinion is not a reason for denying him a writ of habeas corpus.

[ 206 Pa. Super. Page 534]

If the second sentence is in effect relator is serving concurrent sentences,*fn4 one on constructive parole and the other by actual confinement. Although a parolee at actual liberty may not deserve the expenditure of judicial time and effort to determine his grievance concerning his sentence as indicated by the Supreme Court in Stevens, the situation is different when actual physical restraint continues. In the federal courts the restraint imposed by the parole authorities is sufficient to justify the allowance of a writ of habeas corpus. Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 285 (1962). We have found no case in Pennsylvania which directly holds that a parolee may not resort to habeas corpus to attack the sentence from which he is on parole, although generally the courts of Pennsylvania have recognized only actual physical restraint in such cases.

In Stevens the Supreme Court indicated that the application of the prematurity concept would compound the situation, were a hearing or retrial required, and in its Footnote 18 said, "The prematurity concept actually serves no meaningful purpose in post-conviction habeas corpus proceedings such as this. This is especially apparent in light of the fact that the relief, if warranted, is precisely the same whether or not petitioner is presently serving the sentence he attacks. In both instances we would merely order a retrial and not immediate release."

This same statement may be applied in the present case and should be followed by the same ruling. Alexander would not be released, whether or not his claim should be sustained. He would be granted a new trial. As in Stevens, he should not be denied the right to assert and prove the want of due process in his original

[ 206 Pa. Super. Page 535]

    trial until twenty or more years hence with all the additional burdens which accompany passage of those additional years.

Although we would and do delete from our original opinion the general statement that, "The requirement of restraint under the sentence being attacked is no longer a valid reason for denying a writ of habeas corpus by which a defendant seeks to attack fundamental defects in the administration of criminal justice," we will affirm our order on the basis that Commonwealth ex rel. Stevens v. Myers, supra, governs the disposition of the present case. The reasons given in support of Stevens in our opinion are applicable to Alexander. If he is presently serving the back time on his original sentence he has the right to question that sentence; on the other hand, if he is a constructive parolee from that sentence, we think, following the reasoning of Stevens, that he is still under sufficient restraint by reason of same to justify a hearing on his petition for a writ of habeas corpus by which he seeks to prove it to be in violation of his constitutional rights.

Concurring Opinion by Wright, J.:

When this appeal was first submitted on December 14, 1964, I took the position that the case should be remanded for hearing. On June 17, 1965, there was a per curiam order to that effect. On October 7, 1965, an opinion was filed affirming this order. The purpose of this concurring opinion is to express the view that we should not initiate a policy of filing supplementary opinions. Nor do I agree with all that is being said. I concur only in the result.

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