178 Pa. Super. 491 | Pa. Super. Ct. | 1955
Opinion by
This is an appeal by the relator from the judgment of the Court of Common Pleas No. 2 of Philadelphia County dismissing his petition for writ of habeas corpus.
Belator was tried on December 16, 1946 in the Court of Quarter Sessions of Philadelphia County and was placed on probation for a period of five years after entering guilty pleas to bills of indictment (Nos. 623-625, December Sessions, 1946), charging him with burglary and receiving stolen goods. On July 17, 1950, while on probation, relator was convicted of aggravated assault and battery by the Court of Quarter Sessions of Philadelphia County (bill of indictment No. 864, June Sessions,. 1950) and. sentenced to the Pennsylvania Industrial School at Camp Hill for an indefinite period, sentence to be computed- from July 6, 1950. Judge- Kun, before whom relator had been tried on the charges of burglary and receiving stolen goods, thereupon revoked relator’s probation and on July 28, '1950 committed him to the Pennsylvania Industrial School at Camp Hill for an indefinite period.
Eelator contends the Pennsylvania Board of Parole has “transcended its jurisdiction” in extending his maximum sentence to twenty years because the probationary period on the burglary charge has expired and he has served the maximum term on the assault and battery charge.
As stated by the learned hearing judge: “Petitioner’s entire case falls on his averment that probationary period has expired.” On July 28, 1950, the trial judge on bills 623-625, December Sessions, 1946, issued a decree revoking relator’s probation on the ground that he had been convicted,, on the charge of assault and battery while on probation, and at the same time sentenced relator to the Industrial School at Camp Hill for an indefinite period.
Section 6 of the original Act of April 28, 1887, P.L. 63, 61 PS §485, provides for a general sentence
Thus, the effect of the revocation of his probation and general sentence to the Pennsylvania Industrial School was to subject relator to confinement under the burglary conviction for the maximum term of twenty years prescribed by law, unless sooner released by action of the Board of Parole. Com. ex rel. Williamson v. Burke, 172 Pa. Superior Ct. 39, 92 A. 2d 239; Com. ex rel. Clawges v. Claudy, 173 Pa. Superior Ct. 410, 98 A. 2d 225.
Subsequent to his sentence to the Pennsylvania Industrial School on July 28, 1950, relator was paroled and later recommitted as a technical parole violator with a maximum term expiring February 24, 1972. Relator contends the Board of Parole has no jurisdiction to “extend” his sentence by seventeen years. This contention is based on the assumption already shown
Relator is presently serving sentence under the burglary conviction and is properly subject to con
Tlie judgment of the lower court dismissing the writ of habeas corpus is affirmed for the reasons stated herein.
The authority for imposing sentence upon revocation of probation is contained in the Act of May 10, 1909, P. L. 495, §4; 19 PS §1084, which provides that: “Whenever a person placed on probation, as .aforesaid, shall violate the terms of his or her probation, he .or. she shall be . subject to arrest in the same manner as in the case of an escaped convict; and' shall be brought before the court which released him or her on probation, which court may thereupon pronounce upon such defendant such sentence as may be prescribed by law, to begin at such time as the court may direct.”
The Act of Jtily 29, 1953, P. L. 1447, §1, further amending §§4‘ and '6 of the Act of April 28, 1887, P. L. 63, and limiting the duration of a general sentence to the Pennsylvania Industrial School'to sis years, does not apply retroactively to prisoners sentenced to the Industrial School prior to the effective date of the amendment. Com ex rel. Lyons v. Day, 177 Pa. Superior Ct. 392, 110 A. 2d 871.