Appeal from order of Court of Quarter Sessions of Lancaster County, Dec. T., 1958, No. 141, in case of Commonwealth of Pennsylvania v. Lloyd Ulmer.
Lloyd Ulmer, appellant, in propria persona.
Theodore A. Parker, Assistant District Attorney, Clarence C. Newcomer, First Assistant District Attorney, and Wilson Bucher, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J. Wright, J., would affirm on the opinion of Wissler, P. J.
[ 211 Pa. Super. Page 194]
Petitioner pleaded guilty without counsel to aggravated assault and battery and was sentenced on July 17, 1959, to a term of 1 1/2 to 3 years. On January 6, 1961, he was released on parole for the balance of his sentence.
Soon, thereafter, petitioner was again arrested on charges of burglary and aggravated assault and battery. On June 13, 1961, he was sentenced to a term of 3 to 6 years, such sentence to commence after the completion of the year and one half remaining on his earlier sentence.
[ 211 Pa. Super. Page 195]
On September 19, 1961, petitioner was convicted of a prison breach and was sentenced to a term of 1 1/2 to 3 years to begin at the expiration of the sentence imposed on June 13, 1961.
Petitioner filed a petition for writ of habeas corpus on February 4, 1964. The Supreme Court in Commonwealth ex rel. Ulmer v. Rundle, 421 Pa. 40, 218 A.2d 233 (1966), granted the petition and remanded the record with directions for a new trial on the 1959 charge. The Court also ordered that the sentence imposed on June 13, 1961 begin from the date of commitment on the charges therein involved. The allegations in the petition relating to the convictions on June 13 and September 19, 1961 were dismissed.
Petitioner was granted a new trial on September 19, 1966, in which he was found guilty of assault and battery. He was fined $100.00 and sentenced to one year imprisonment, to begin at the expiration of the 1961 sentences. Petitioner contends that he must be given credit for the time served under the invalid sentence of July 17, 1959.
Whether a person granted a new trial and resentenced shall be given credit for time served under an invalid sentence for the same acts has not been considered by our courts.*fn1
No uniform rule has been established. A review of the cases throughout the United States reflects a decided split of ...