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MICHAEL KEITH v. COMMONWEALTH PENNSYLVANIA (08/25/83)

decided: August 25, 1983.

MICHAEL KEITH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Original jurisdiction in the case of Michael Keith v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

John H. Chronister, Assistant Public Defender, for petitioner.

Robert A. Greevy, Chief Counsel, with him Arthur R. Thomas, Assistant Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Blatt, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 76 Pa. Commw. Page 545]

Michael Keith (prisoner) invokes this Court's original jurisdiction*fn1 and asks for relief in the nature of a writ of mandamus to compel the Pennsylvania Board of Probation and Parole (Board) to recompute his maximum sentence date.

On August 18, 1972, the prisoner was sentenced in the Court of Common Pleas of York County to a term of not less than three (3) nor more than six (6) years. On September 25, 1972, he was sentenced in the same court to a term of not less than two (2) nor more than five (5) years. The judge at the second (September) sentencing hearing, stated that the second sentence would begin at the expiration of the first sentence imposed in August, or in other words, the sentences were to be served consecutively. The sentences, however, were later aggregated so as to become a five to 11 year sentence, effective August 18, 1972 with a minimum date of August 18, 1977 and a maximum of August 18, 1983. The prisoner was paroled on July 20, 1978, but was later returned to prison as a parole violator after a new offense was committed in 1981.

The prisoner argues that the sentences were improperly aggregated and therefore his maximum date should be recomputed. The applicable statute at the time of sentencing, Section 1 of the Act of June 25, 1937, P.L. 2093, as amended, 19 P.S. ยง 897*fn2 provided:

Whenever, after the effective date of this act, two or more sentences to run consecutively are imposed by any court of this Commonwealth upon any person convicted of crime therein, there shall be deemed to be imposed upon such person a sentence the minimum of which shall be the total of the minimum limits

[ 76 Pa. Commw. Page 546]

    of the several sentences so imposed, and the maximum of which shall be the total of the maximum limits of such sentences.

The statute, as interpreted by the Superior Court in Commonwealth ex rel. Lycett v. Ashe, 145 Pa. Superior Ct. 26, 20 A.2d 881 (1941), is applied only to consecutive sentences imposed at the same time by the same court. This Court has reaffirmed that interpretation in Cunningham v. Pennsylvania Board of Probation and Parole, 39 Pa. Commonwealth Ct. 229, 394 A.2d 1315 (1978) and Ray v. Howard, 39 Pa. Commonwealth Ct. 559, 395 A.2d 1038 (1979). Here, the sentences were imposed on two separate dates and therefore the sentences were as the prisoner alleges, improperly aggregated. In Cunningham, this Court stated that:

[W]here the aggregation provision of the Act of 1937 was not applicable, a prisoner sentenced to two consecutive terms by different judges could have applied for parole at the end of the minimum term of the first sentence, and, if such a "constructive parole" had been allowed, could have immediately entered the minimum term of the second sentence while, at the same time, serving the balance of the maximum term of his first sentence. Thus, the final maximum term expiration date could occur earlier, as ...


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