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ROBERT ALLEN RAY v. JAMES H. HOWARD (01/04/79)

decided: January 4, 1979.

ROBERT ALLEN RAY, PETITIONER
v.
JAMES H. HOWARD, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION, PITTSBURGH, PENNSYLVANIA 15233 AND PENNSYLVANIA BOARD OF PARDONS AND PAROLE, RESPONDENTS



Original jurisdiction in case of Robert Allen Ray v. James H. Howard, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania, and Pennsylvania Board of Pardons and Parole.

COUNSEL

Robert Allen Ray, petitioner, for himself.

Robert A. Greevy, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge DiSalle.

Author: Disalle

[ 39 Pa. Commw. Page 560]

On March 13, 1978, Robert Allen Ray (Petitioner), filed in this Court a Complaint in Mandamus which we have treated as a petition for review pursuant to the Pennsylvania Rules of Appellate Procedure. On May 11, 1978, the Board of Probation and Parole (Board) filed an answer to said petition, along with new matter, verifying its factual allegations by attaching a certificate of the Chairman of the Board. Petitioner filed a reply and new matter to said answer on May 22, 1978. He then filed preliminary objections, alleging that the Board's failure to attach an official seal to the Chairman's certificate rendered

[ 39 Pa. Commw. Page 561]

    said certificate defective. We dismissed those objections. On July 6, 1978, Petitioner filed a motion for summary judgment and on August 21, 1978, the Board filed a cross-motion for summary judgment. These motions are presently before us.

The facts are as follows. On May 19, 1964, Judge Troutman of the Court of Common Pleas of Philadelphia County, sentenced Petitioner to two consecutive terms of two and one-half to five years each for the offense of robbery, with an effective date of October 16, 1963, a minimum date of October 16, 1968, and a maximum expiration date of October 16, 1973. On January 8, 1965, Judge Curran of the Court of Common Pleas of Delaware County, sentenced Petitioner to two consecutive terms of five to ten years each for robbery by assaultive force.

At this point, the allegations become conflicting. The Board claims that on July 4, 1968, it offered Petitioner a parole application which he refused to complete, and that a few weeks later, he advised it that he was not applying for parole. It claims further that on November 4, 1971, following an interview with Petitioner, and his completion of a parole application, it paroled Petitioner for re-entry pursuant to the Delaware sentence. Petitioner, however, refused to complete his parole release papers, requesting that he be paroled to the street as opposed to being paroled solely for re-entry. In view of what the Board characterized as Petitioner's negative interest in parole, it then rescinded its earlier parole action and declared that Petitioner serve the maximum term on the Philadelphia County sentences. That made the effective date of the Delaware County sentences October 16, 1973, with a minimum date and eligibility for parole on October 16, 1983, and a maximum expiration date of October 16, 1993.

[ 39 Pa. Commw. Page 562]

Petitioner denies that he refused to complete a parole application. Furthermore, he contends that the Board led him to believe that pursuant to Section 1 of the Act of June 25, 1937 (Act), P.L. 2093, as amended, 19 P.S. ยง 897, repealed by Pa. R. Crim. P. 1415, it had combined the minimum of all four sentences, rendering him ineligible for parole until October 16, 1978,*fn1 and that, therefore, he need not apply until then. Accordingly, he asks that the Board be directed to amend its records to show that he was eligible for parole consideration on or before October 16, 1978.

The law on this matter is clear. Prior to the Act of 1937, an individual given consecutive sentences at the same time and by the same court had to apply for constructive parole*fn2 at the expiration of each minimum sentence, or be held to have continued serving the maximum term. Commonwealth ex rel. Morgan v. Smith, 146 Pa. Superior Ct. 354, 22 A.2d 228 (1941). Assuming constructive parole was granted each time, the prisoner would become eligible for actual parole, that is, release from ...


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