Appeal from Order dated May 6, 1976 of the Court of Common Pleas, Criminal Division, County of Bucks, Pennsylvania at Nos. 66, 67 and 68 of 1952.
Arthur R. Sagaskin, Assistant Public Defender, Doylestown, for appellant.
Stephen B. Harris, First Assistant District Attorney, Doylestown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 248 Pa. Super. Page 326]
This is an appeal from an order of the lower court of Bucks County, dated May 6, 1976, denying appellant's petition for relief under the Post Conviction Hearing Act.
[ 248 Pa. Super. Page 327]
Appellant, Paul A. Frankenhauser, was arrested on May 29, 1952, on charges of rape and other related offenses. He was on that date committed to the Bucks County Prison where he remained until sentencing. Upon guilty pleas entered on the above charges appellant was sentenced on January 2, 1953, pursuant to the provisions of the Barr-Walker Act,*fn1 to confinement in a state institution for an indefinite period ranging from one day to the rest of his natural life.
Appellant was sent to Farview State Hospital where he remained until October 8, 1957, when he was released on parole (approximately 5 years, 4 months from the date of his original commitment on May 29, 1952). He remained on parole until August 21, 1967 when he was arrested on new rape charges occurring in the State of New Jersey. (At this point appellant had served 15 years, 3 months, including incarceration and parole.) Appellant was convicted on the New Jersey charges and sentenced on July 31, 1969 to a term of not less than five nor more than ten years imprisonment. When appellant began serving the New Jersey sentence, a parole violation detainer was lodged against him by the Pennsylvania Board of Parole. Pursuant to the decision of this Court in Commonwealth v. Dooley, 209 Pa. Super. 519, 232 A.2d 45 (1967), declaring the sentencing procedure employed under the Barr-Walker Act unconstitutional, appellant filed a petition requesting to be resentenced on the original 1952 indictments. On July 16, 1970, appellant was temporarily returned to Pennsylvania for resentencing, receiving a term of imprisonment of five to fifteen years, credit to be given only for the period of appellant's previous incarceration in Pennsylvania, (5 years, 4 months incarceration, excluding the 9 years, 11 months of parole time), and sentence to be consecutive to the New Jersey sentence.
Upon parole from the New Jersey sentence, appellant was returned to Pennsylvania pursuant to the detainer lodged by the State Parole Board and is presently serving the five to
[ 248 Pa. Super. Page 328]
fifteen year resentence imposed pursuant to the July 16, 1970 order. Appellant then filed a petition for relief under the PCHA attacking the validity of the lower court's resentence of five to fifteen years. Upon denial of his petition, this appeal followed.
The controlling issue raised by appellant is whether he is entitled to be discharged from further service of the five to fifteen years prison term imposed by the lower court, where his original sentence (one day to life) under the Barr-Walker Act was illegal, and where the maximum legal sentence of fifteen years had expired prior to his arrest in New Jersey on other charges. Thus, the appellant contends that the New Jersey offense is not a parole violation of the Pennsylvania sentence. We agree with appellant and hold that the lower court erred in failing to credit appellant's Pennsylvania parole time in the resentencing of appellant on these charges, since ...