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COMMONWEALTH v. BIGLEY (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
BIGLEY, APPELLANT



Appeal from order of Court of Common Pleas of Northampton County, April T., 1973, No. 92, in case of Commonwealth of Pennsylvania v. William Bigley.

COUNSEL

Margaret H. Poswistilo, for appellant.

John E. Gallagher, First Assistant District Attorney, and Charles H. Spaziani, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 231 Pa. Super. Page 493]

Appellant contends that the court below erred in ordering that the eleven months and twenty-eight days which he spent in prison between arrest and sentencing for his most recent offense be counted toward the completion of an earlier sentence, on which appellant has been held as a parole violator, rather than towards the sentence imposed on appellant's most recent charge.

[ 231 Pa. Super. Page 494]

Appellant originally pleaded guilty to charges of burglary and larceny on October 3, 1966. On October 31, 1966, he was sentenced to serve two to five years in a state correctional institution. Appellant served approximately two years on this charge before being paroled on August 5, 1968. On February 10, 1970, appellant was convicted by a jury on a new set of charges involving burglary and larceny. On March 8, 1971, he was sentenced to serve fifteen months to three years in Northampton County Prison. Counting time spent in custody before sentencing, appellant served seventeen months and nine days on this charge before being paroled on April 30, 1971.*fn1 Following this parole, appellant was not released from prison. He was recommitted, and served an additional period of almost four months in Northampton County Prison*fn2 on the 1966 charges before his most recent release on parole on August 23, 1971. Thus, appellant was paroled still owing two years, seven months, and 29 days on the maximum sentence for his 1966 charges.

On March 8, 1973, appellant was committed to Northampton County Prison in lieu of bail on new charges of burglary, larceny, and conspiracy. On March 9, a detainer was filed against appellant by the Pennsylvania Board of Probation and Parole based on appellant's apparent violation of the conditions of his parole on the 1966 charges. On June 14, 1973, a jury found appellant guilty of the 1973 charges. On November 21, 1973, appellant posted bail but was not discharged; he continued to be held on the detainer filed by the Parole Board. On March 6, 1974, appellant was

[ 231 Pa. Super. Page 495]

    sentenced to serve one to three years in the Northampton County Prison on the new charge of burglary and larceny.

On April 15, 1974, the trial judge issued an order (filed April 16) attempting to clarify his original sentence and stating that the time which appellant had spent in prison between March 8, 1973, and sentencing be applied to the sentence on the 1966 charge, on which appellant had been paroled. On May 24, 1974, appellant was formally adjudicated a parole violator by the Parole Board, by reason of his conviction on the 1973 charge. The Board, however, in its order dated May 30, 1974, apparently calculated his parole violation time as beginning on March 6, 1974, the date of sentencing. This direct appeal has been taken from the order of the lower court, and not from the order of the Parole Board.

The question of whether appellant's time awaiting sentencing is applied to his sentence on the 1966 charges, or the 1973 charges, will have no effect on the expiration date of the maximum sentences on the two charges. It will, however, affect the date on which appellant may first be granted parole. Appellant cannot be paroled until he has served the minimum sentence on both charges.*fn3 Appellant served the minimum sentence on the 1966 charges before being released on parole. If the eleven months and twenty-eight days spent in prison before sentencing are credited to the one year minimum ...


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