188 Pa. Super. 124 | Pa. Super. Ct. | 1958
Opinion by
This is an appeal from an order of the Honorable A. H. Ehrgood, President Judge of the Court of Common Pleas of Lebanon County, dismissing the petition for a writ of habeas corpus after a hearing at which the relator and his counsel were present.
The facts are as follows: on August 2, 1955 relator was arrested and imprisoned in the Lebanon County jail on a charge of pointing a deadly weapon, to No. 54 December Sessions, 1955 (hereinafter called “54”), in the Court of Quarter Sessions of Lebanon County. Relator was unable to raise bail and while in jail awaiting the disposition of this charge, additional indictments were filed to No. 27 December Sessions, 1955 (hereinafter called “27”), consisting of three counts of larceny, malicious mischief and conveying liquor to prisoners; and to No. 55 December Sessions, 1955 (hereinafter called “55”), of being an accessory before the fact of a prison breach. On October 26, 1955 relator pleaded guilty to 54 and was sentenced to serve not less than 3 months and not more than 15 months, to be computed from his original commitment on August 2, 1955, in the Lebanon County jail. On October 27, 1955 relator pleaded guilty to indictment 27 and was sentenced to pay one-half of the costs of prosecution and be imprisoned in the Eastern State Penitentiary for a period of not less than 1 year and not more
Relator contends that the language used by the court below on sentence 55 failed to create a consecutive term and therefore it is void and he is now being illegally confined because of the expiration of the maximum terms on sentences 54 and 27. We cannot agree with this contention. The court’s sentence on 54 was entirely proper since the court began this sentence from the date of commitment, to wit: August 2, 1955: Act of May 28, 1937, P. L. 1036, §1, 19 PS §894. On October 26, 1955, when sentence 54 was imposed, relator was not “Tindergoing imprisonment under a sentence imposed for any other offense or offenses. . . .” Therefore, the relator being in custody in default of
The sentence imposed by the court below in 27 commenced on October 27, 1955, the date when it was imposed, and expired at the end of the maximum term of two years on October 27, 1957. Under §1 of the Act of May 28, 1937, supra, the sentence necessarily began to run on the date of imposition since the court failed to state when the sentence was to commence, and the two-year maximum term expired on October 27, 1957.
We cannot agree with relator’s contention that the sentence on 55 was void.
“Said sentence shall commence from the expiration of the original sentence and any other sentences previously imposed which remained to be served at the time the offense of prison breach was committed.
«
This amendment made several important changes in that prison breach is now a felony punishable by separate and solitary confinement at labor for a term not exceeding 10 years. Under the prior act the crime of prison breach was a misdemeanor and punishable by imprisonment not to exceed two years, with some exceptions which are not here present. The most important change, however, is that under the prior act the second clause was applicable only where the prisoner was imprisoned by virtue of a sentence: Com. ex rel. Gibbs v. Ashe, 165 Pa. Superior Ct. 35, 40, 67 A. 2d 773. The 1953 amendment omits that section and makes no distinction as to whether or not the person committing the breach was a person “charged with an indictable offense” or a person “imprisoned after conviction” but now relates to “any person undergoing imprisonment”. The word “imprisonment” means “actual confinement in any penal or correctional institution located in this Commonwealth, or any restraint by lawful authority pursuant to a court order or after conviction of any crime.” The relator was “undergoing imprisonment” at the time of the commission of the offense charged in 55. While he was charged as an accessory before the fact of prison breach, the Act of June 24, 1939, P. L. 872, §1105, as amended, 18 PS §5105, provides that every “accessory before the fact, to any felony at the common law or under any act of Assembly may be indicted, tried, convicted, and if no punishment is provided, may be punished in all respects as if he were the principal felon.” The court expressed the intention that the sentence in 55 was
We add that the minimum sentence under 55 having expired September 12, 1957, the relator could at this time present a petition to the Pennsylvania Board of Parole seeking a parole.
Order affirmed.
To correct an illegal sentence a prisoner is entitled to a writ of habeas corpus: Com. ex rel. Rogers v. Harris, 180 Pa. Superior Ct. 323, 326, 119 A. 2d 862.