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filed: April 20, 1981.


No. 2803 October Term, 1978, Appeal from the Order dated October 23, 1978, of the Court of Common Pleas, TRIAL DIVISION, CRIMINAL SECTION, for the County of PHILADELPHIA, at No. 337 October Term 1967.


Richard W. Hoy, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Stranahan

[ 286 Pa. Super. Page 240]

This matter is before the Court on an appeal of a denial of a post-conviction hearing petition which was filed by Joseph Walker, a/k/a Joseph Dawes.*fn1 The petition was denied without a hearing and the petitioner has appealed.

Joseph Walker was charged with burglary and pleaded guilty to that charge on November 20, 1969. On April 16, 1970 he was placed on five years probation and on April 18, 1972 the petitioner was determined to be in violation of his probation but the sentencing judge continued the probation. On November 27, 1973, the petitioner was again determined to be a probation violator and the trial judge imposed a five to ten year suspended sentence and returned the defendant to five years probation. On December 16, 1974 the defendant was again determined to be a probation violator and the sentencing judge imposed a two to ten years sentence.

On December 5, 1977, a pro se petition under the Post Conviction Hearing Act was filed and was subsequently amended on April 27, 1978. The petition for relief having been denied without a hearing, this appeal was taken.

The issue involved is the failure of the sentencing judge to allow credit towards the defendant's sentence for time served prior to imposition of sentence. In the present case the defendant served time from August 29, 1967 to April 16, 1970 when he was granted probation.

[ 286 Pa. Super. Page 241]

At the time of his sentencing of two to ten years in prison, the sentencing judge made no mention of crediting time that the petitioner had already served.*fn2

The position of the Commonwealth is that the post conviction hearing petition is an inappropriate method of bringing this matter before the court and if the petitioner has any dispute, his dispute rests with the Pennsylvania Board of Probation and Parole and not against the sentencing court. Therefore, the Commonwealth contends that the proper mode of relief is to bring a proceeding in mandamus to compel the Board to grant credit to the prisoner, relying on Moore v. Roth, 231 Pa. Super. 464, 331 A.2d 509 (1974).*fn3

We disagree with the position of the Commonwealth and are somewhat dismayed that a matter as simple as this should become involved in prolonged procedure that results from an appeal. The law mandates that a person being sentenced shall receive credit on his sentence for all time spent in custody as the result of the criminal charge for which a prison sentence is being imposed. Act of 1974, December 30, P.L. 1052, 345 sec. 1; 18 Pa.C.S.A. 1360.*fn4 For the court to disregard this mandated requirement is clearly error and should be immediately corrected.

The argument that the matter is a dispute between the prisoner and the Board of Probation and Parole simply is not so. If the court has imposed an erroneous sentence on the party being imprisoned, it is the court's obligation to correct its sentence and bring it into compliance with the

[ 286 Pa. Super. Page 242]

    law. The Post Conviction Hearing Act affords a prisoner the right to bring a proceeding of this type if his rights of due process are being violated.*fn5

It has been held that since a person's liberty is at stake in a sentencing procedure, it obviously involves the deprivation of due process if the procedure is improper.*fn6 In the present case the defendant will be denied his liberty if he does not receive credit for the time served as required under the statute. Commonwealth v. Opara, 240 Pa. Super. 511, 362 A.2d 305 (1976).

An examination of the cases indicates that the Superior Court has the power to amend a sentence provided it does not increase the term for which the person is being sentenced. Commonwealth v. Downer, 161 Pa. Super. 339, 53 A.2d 897 (1947); Commonwealth ex rel. Spanos v. Keenan, 176 Pa. Super. 245, 107 A.2d 593 (1954).

Such being the case, we enter the following order:

AND NOW, April 20, 1981, IT IS ADJUDGED that the sentence heretofore imposed upon the petitioner by the Court of Common Pleas, Criminal, of Philadelphia County at 337 October Sessions 1976, is amended so as to allow credit to Joseph Walker, a/k/a Joseph Dawes, for time served from August 29, 1967 to April 16, 1970.

*fn* Pres. Judge John Q. Stranahan of the Court of Common Pleas of Mercer County, Pennsylvania, and Judge Leonard Sugerman of the Court of Common Pleas of Chester County, Pennsylvania, are sitting by designation.

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