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COMMONWEALTH EX REL. THOMAS v. MYERS (01/04/66)

decided: January 4, 1966.

COMMONWEALTH EX REL. THOMAS, APPELLANT,
v.
MYERS



Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1965, No. 5857, in case of Commonwealth ex rel. Phillip Clark Thomas v. David N. Myers, Superintendent.

COUNSEL

Phillip Clark Thomas, appellant, in propria persona.

Ted E. Freedman and Joseph M. Smith, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 419 Pa. Page 578]

On March 2, 1960, Phillip C. Thomas (Thomas), was found guilty of voluntary manslaughter in the Court of Quarter Sessions of Philadelphia County and sentenced by Judge Chudoff to serve a minimum term of two and one-half years and a maximum term of five years and was incarcerated in accordance with such sentence. This sentence, effective September 2, 1959, resulted in a minimum date of confinement of March 2, 1962 and a maximum date of September 2, 1964. Upon completion of his minimum sentence, Thomas was paroled by the Pennsylvania Board of Parole (Board) on March 2, 1962.

While on parole, Thomas was found guilty of aggravated robbery and was sentenced by Judge Sporkin of the Court of Quarter Sessions of Philadelphia County to serve a minimum of one and one-half years and a maximum of four years and was incarcerated in accordance with such sentence. On December 3, 1963, Thomas was granted a parole in connection with this sentence and on that date he was returned to the State Correctional Diagnostic Center, Philadelphia, as a convicted parole violator. On March 3, 1964, Thomas was transferred to the State Correctional Institution at Graterford, where he is presently incarcerated and serving the unexpired term of his original sentence.

On May 19, 1965, Thomas filed a petition for a writ of habeas corpus in the Court of Common Pleas No. 2 of Philadelphia County, alleging that he was being illegally confined beyond the maximum expiration date

[ 419 Pa. Page 579]

    of the original sentence imposed by Judge Chudoff, that he was incarcerated as a "convicted parole violator" without being indicted, tried or represented by counsel and that his confinement beyond the maximum date of the original sentence offended his constitutional rights. The court granted a rule to show cause why the writ should not issue, an answer was filed thereto both by the superintendent of the institution wherein Thomas was confined and the district attorney and a hearing held at which Thomas was present. Judge Guerin of the Court of Common Pleas No. 2 of Philadelphia County dismissed the petition and refused the writ. From that order this appeal is taken.

It is clear beyond question, on the instant record, that, after having served the minimum term of his original sentence, Thomas, while on release as a parolee, was convicted of the crime of aggravated robbery a crime punishable by imprisonment -- and that, after being released from confinement on the sentence imposed on the charge of aggravated robbery, he was returned to the custody of the Parole Board and recommitted as a violator of his parole.

[ 419 Pa. Page 580]

The statute (Act of August 6, 1941, P. L. 861, § 21.1, added August 24, 1951, P. L. 1401, § 5, as amended, 61 P.S. § 331.21(a) provides: "(a) Convicted violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution of the Commonwealth who, during the period of parole or while delinquent on parole, commits any crime punishable by imprisonment, for which he is convicted or found guilty by a judge or jury or to which he pleads guilty or nolo contendere at any time thereafter in a court of record, may, at the discretion of the board, be recommitted as a parole violator. If his recommitment is so ordered, he shall be reentered to serve the remainder of the ...


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