No. 1197 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Cambria County, at O & T 4, 1954 D29, December 1954, and D90 March, 1951.
Sheldon Dorian, in pro. per.
D. Gerald Long, District Attorney, Ebensburg, for Commonwealth, appellee.
Spaeth, Hester and Watkins, JJ. Spaeth, J., files a dissenting opinion.
[ 304 Pa. Super. Page 164]
In this appeal by the defendant-appellant, Sheldon Dorian, it is claimed that the court below erred when it dismissed his P. C. H. A. petition, without a hearing. Defendant's petition alleged the court erred in dismissing his petition because Pennsylvania law holds that a defendant who is presently serving a valid sentence, the term of which is computed from the date he completed a constitutionally invalid sentence may contest the invalid sentence by way of a P. C. H. A. proceeding.
The defendant pled guilty to rape and assault with intent to ravish in March of 1951. He was sentenced to an indefinite term in prison up to a maximum term of fifteen (15) years as the result of his plea.
In November of 1954, the defendant pled guilty to prison breach (for which he was sentenced to two and one-half to
[ 304 Pa. Super. Page 165]
five [2 1/2-5] years and auto theft (for which he received three and one-half to seven [3 1/2-7] years), said sentences to run concurrently.
In 1965 a federal court invalidated his 1951 plea and sentence. The case was then remanded to the lower court. In August of 1965 the defendant pled guilty to assault with intent to ravish. The rape charge was nol prossed. He was sentenced to two and one-half to five (2 1/2 to 5) years.
On March 9, 1981 the defendant was sentenced to six to twelve (6 to 12) years on a burglary charge. He was then serving two other sentences, viz., a seven and one-half to fifteen (7 1/2 to 15) year term and a concurrent sentence of six (6) months to two (2) years (effective date of which was June 22, 1977). The first charge was as a result of an Armed Robbery conviction; the second for Prison Breach.
But for the burglary conviction (for the March 9, 1981 sentence) defendant's maximum sentence on prison breach would have expired on February 2, 1981. His maximum sentence on the Armed Robbery ...