Opinion
November 15, 1962.
December 12, 1962.
Criminal Law — Sentence — Parole — Recommitment for violation of parole not second sentence — Power of court to specify portion of unexpired sentence to be served — Right of prisoner legally confined to writ of habeas corpus.
1. In a habeas corpus proceeding, in which it appeared that petitioner, after conviction on a charge of failure to stop his vehicle at the scene of an accident, was sentenced to serve from thirty days to twenty-three months in the county workhouse; that about a month later he was released on parole, and, while on parole, committed another crime, for which he was convicted and given a sentence to be served in the county workhouse; and that thereafter his parole was revoked, and an order was entered directing him to serve an additional eighteen months on the original crime; it was Held that (a) his return to the county workhouse on The Vehicle Code violation was not a second sentence for that violation, but a recommitment for violation of his parole; (b) when recommitting the prisoner for violation of parole, the court below had no statutory authority to designate the specific period of eighteen months as the additional time for the prisoner to serve; and (c) prisoner was properly refused a writ of habeas corpus.
2. Whether the petitioner was required by statute to serve all of the balance of twenty-two months remaining on the sentence imposed under The Vehicle Code, or whether the court might reparole him after the recommitment, and, if so, whether the designation of eighteen months constituted a reparole made at the time of recommitment to be effective eighteen months later, were Held to be questions not before the appellate court in the instant appeal.
3. If a prisoner is legally confined in prison, he is not entitled to a writ of habeas corpus.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 271, April T., 1962, from order of Court of Common Pleas of Allegheny County, July T., 1962, No. 3567, in case of Commonwealth ex rel. William Larkins v. L.P. Keenan, Warden. Order affirmed.
Habeas corpus.
Order entered dismissing petition, opinion by VAN DER VOORT, J. Relator appealed.
William Larkins, appellant, in propria persona.
William Claney Smith, Assistant District Attorney, and Edward C. Boyle, District Attorney, for appellee.
Submitted November 15, 1962.
This is an appeal by a prisoner from an order of the Court of Common Pleas of Allegheny County refusing him a writ of habeas corpus.
The petitioner was sentenced on January 13, 1960, to serve from 30 days to 23 months in the Allegheny County Workhouse after conviction on a charge of failure to stop his vehicle at the scene of an accident. The petitioner was released on parole on February 11, 1960. While on parole, he committed an assault with intent to ravish for which he was convicted and sentenced to serve from two to four years in the Allegheny County Workhouse. Thereafter, on May 19, 1961, he was brought before the Court of Quarter Sessions where his parole was revoked, and an order was entered directing him to serve an additional 18 months on The Vehicle Code violation.
The penalty for violation of this provision is simple imprisonment (See § 1027 of The Vehicle Code of April 29, 1959, P.L. 58, 75 Pa.C.S.A. § 1027) but the amendment of September 26, 1951, P.L. 1460 to § 6 of the Act of June 19, 1911, P.L. 1055, 19 P. S. § 1057, authorizes the court to pronounce a sentence for an indefinite term.
In his petition for a writ of habeas corpus, he contends that he has received two sentences for the one violation of The Vehicle Code, and that the second "sentence" of 18 months is illegal. His return to the Workhouse on The Vehicle Code violation was not a second sentence for that violation, but a recommitment for the violation of his parole. See § 10 of the Act of June 19, 1911, P.L. 1055, as amended, 61 P. S. § 305 and § 1 of the Act of June 19, 1911, P.L. 1059, as amended, 61 P. S. § 314; Com. ex rel. Meinzer v. Smith, 118 Pa. Super. 250, 180 A. 179 (1935); Com. ex rel. Haun v. Cavell, 190 Pa. Super. 346, 354, 154 A.2d 257 (1959).
When recommitting the prisoner for violation of parole, the court had no statutory authority to designate the specific period of 18 months as the additional time for the prisoner to serve. Whether the petitioner is required by statute to serve all of the balance of 22 months remaining on the sentence imposed under The Vehicle Code, or whether the court may reparole him after the recommitment of May 19, 1961, and, if so, whether the designation of 18 months constitutes a reparole made at the time of recommitment to be effective 18 months later are questions not before us on this appeal.
Whatever the answers are to these questions, there is no doubt that the prisoner is legally confined at this time, and is, therefore, not entitled to a writ of habeas corpus. Com. ex rel. Salerno v. Banmiller, 189 Pa. Super. 156, 160, 149 A.2d 501 (1959); Com. ex rel. Dixon v. Johnston, 188 Pa. Super. 595, 149 A.2d 473 (1959).
Order affirmed.