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GARY LEE ALEXANDER v. COMMONWEALTH PENNSYLVANIA (09/10/84)

decided: September 10, 1984.

GARY LEE ALEXANDER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Gary Lee Alexander, No. P-1509.

COUNSEL

Lester G. Nauhaus, Public Defender, with him, John H. Corbett, Jr., Chief-Appellate Division, and Shelley Stark, Appellate Counsel, for petitioner.

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

Judges Craig, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 85 Pa. Commw. Page 112]

Gary Lee Alexander (Petitioner) appeals here from an order of the Pennsylvania Board of Probation and Parole (Board) which denied his request for administrative relief seeking recomputation of his sentence.*fn1

On October 23, 1974, Judge Sawyer of the Court of Common Pleas of Beaver County sentenced Petitioner to a term of not less than one (1) nor more than three (3) years. Also on October 23, 1974, Judge Rowley of the same court revoked a previously deferred sentence*fn2 and sentenced Petitioner to a term of not less than one (1) nor more than three (3) years. Judge Rowley stated that the second sentence was "to be served consecutively to and commence at the expiration of the sentence imposed . . . by Judge Sawyer." The sentences, however, were later aggregated so as to become a two to six year sentence, effective April 13, 1974 with a minimum date of April 13, 1976 and a maximum of April 13, 1980. Petitioner was paroled on December 7, 1976, but was later returned to prison as a parole violator after a new offense was committed in 1979. Being a convicted parole violator, Petitioner was not given credit for street time, and accordingly his maximum term expiration date was extended to September 29, 1982.*fn3

[ 85 Pa. Commw. Page 113]

Petitioner contends that the sentences were improperly aggregated and therefore his maximum date should be recomputed. The applicable provision at the time of sentencing, Pa. R. Crim. P. 1406(b),*fn4 provided:

Whenever two or more sentences are imposed on a defendant to run consecutively, there shall be deemed to be imposed upon such defendant, unless otherwise stated by the judge, a sentence the minimum of which shall be the total of the minimum limits of the several sentences so imposed, and the maximum of which shall be the total of the maximum limits of such sentence.

The predecessor to this provision, Section 1 of the Act of June 25, 1937, P.L. 2093, as amended, 19 P.S. ยง 897,*fn5 was interpreted by the Superior Court in Commonwealth ex rel. Lycett v. Ashe, 145 Pa. Superior Ct. 26, 20 A.2d 881 (1941), to apply only to consecutive sentences imposed at the same time by the same court. This interpretation has since been reaffirmed by this Court 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). It is our view that the language "unless otherwise stated by the judge " (emphasis added) also mandates that this provision be applicable only to consecutive sentences

[ 85 Pa. Commw. Page 114]

    imposed at the same time by the same court.*fn6 Here, the sentences were not imposed simultaneously. Thus, the sentences were, as ...


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