69 Pa. Commw. 25 | Pa. Commw. Ct. | 1982
Opinion by
James T. Cunningham (Petitioner) has filed a Petition for Review with this Court which seeks a recom-putation by the Board of Probation and Parole (Board)
The facts in this case are not in dispute. On February 2, 1962, Petitioner was sentenced to (1) a term of from four to eight years for aggravated robbery, (2) a term of from five to ten years for aggravated robbery that was to be served consecutive to the four to eight year aggravated robbery charge, (3) a term of from five to ten years for aggravated robbery that was to be served concurrently with the prior terms, and (4) a term of from two to five years for possession of drugs that was to be served consecutive to the other terms. Pursuant to the provisions of Section 1 of the Act of June 25, 1937 (Act), P.L. 2093, formerly 19 P.S. §897, repealed by Section 2(a)[1202] of the Act of April 28, 1978, P.L. 202, the mínimums and máx-imums of these sentences were added together to produce an aggregated term of from eleven to twenty-three years with a minimum term expiration date of April 7, 1972, and a maximum term expiration date of May 7, 1984. Petitioner was subsequently released on parole on April 19, 1972, was arrested and recommitted as a technical parole violator, and was re-paroled on October 17, 1973. While on parole, Petitioner was convicted of charges of manufacturing and possessing a controlled substance, and was recommitted as a convicted parole violator. Being a convicted parole violator, Petitioner was not given credit for street time, and accordingly his maximum term expiration date was extended to May 28, 1986. Thereafter, on May 14, 1976, Petitioner was reparoled and was subsequently arrested for various drug related offenses. Petitioner’s 1962 two to five year drug possession sentence was subsequently terminated, thereby reducing his maximum sentence expiration date to April 9, 1979, but on March 19, 1977, he was found
Before this Court, Petitioner argues that his due process and equal protection rights were violated by the aggregation of the maximum terms of the 1962 sentences pursuant to the provisions of Section 1 of the Act since if he had received his convictions in separate counties he could have applied for constructive parole upon the expiration of the minimum term of each sentence, and if such paroles would have been granted, could have had a shorter maximum expiration date.
While it is indeed true that individuals receiving multiple sentences in a single county could have received a different maximum term expiration date under the provisions of the Act from those individuals being sentenced for the same offenses in separate counties, Commonwealth ex rel. Lycett v. Ashe, 145 Pa. Superior Ct. 26, 20 A.2d 881 (1941), it is clear that the question of the constitutionality of this possible disparate treatment is entirely moot in this case. In the present case we do not have a situation where Petitioner has been recommitted as a parole violator, and hence, must serve the remaining portion of his maximum sentence before the commencement of his new five to ten year possession sentence. See Section 21.1 of the Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act or August 24, 1951, P.L.
Accordingly, we will enter the following
Order
Now, Safpfcaanber 13, 1982, the petition for review filed by Jaws® T. Cunningham in the above captioned matter is as moot.