Com. ex rel. Pyeattev.Burke

Superior Court of PennsylvaniaJan 17, 1952
170 Pa. Super. 355 (Pa. Super. Ct. 1952)

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October 2, 1951.

January 17, 1952.

Criminal law — Habeas corpus — Sentence — Extra time served on sentence with excessive maximum — Credit on subsequent sentences — Power of courts — Pardon Board.

Where, in a habeas corpus proceeding, it appeared that relator had improperly been given a lumping sentence of five to ten years, instead of a maximum of four years, and that he was released on parole after having served the minimum term of five years; that before the expiration of the maximum sentence, he was convicted of another crime and given a sentence of five to ten years, to commence at the expiration of the remaining time under the first sentence; that upon petition of relator the first sentence was amended by changing the maximum term from ten to four years, and the date of commencement of the second sentence was corrected; that relator's minimum term of the second sentence expired and he was paroled; and that while on such parole and prior to the expiration of the maximum sentence for the second crime he was convicted of a third crime and given a sentence to commence at the expiration of the uncompleted time on the sentence for the second crime; it was Held that (1) no court had the power to alter the sentence for the second crime after the term, except for illegality of that sentence; (2) the court was without power to modify either the second or third sentences to such effect that relator would be given credit for the extra year that he had served under the first sentence; and (3) the only tribunal which had authority to give relator the one year credit on his sentence was the Pardon Board.

Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.

Appeal, No. 188, Oct. T., 1951, from judgment of Court of Common Pleas of Montgomery County, April T., 1951, No. 167, in case of Commonwealth of Pennsylvania ex rel. Leon Pyeatte v. Cornelius J. Burke, Warden, Eastern State Penitentiary. Judgment affirmed.

Habeas corpus proceeding.

Order entered dismissing petition, opinion by KNIGHT, P.J. Relator appealed.

John S.J. Brooks, for appellant.

Robert M. Mountenay, Assistant Deputy Attorney General, with him Robert E. Woodside, Attorney General, and J. Stroud Weber, District Attorney, for appellee.


Argued October 2, 1951.


The court below dismissed relator's petition for a writ of habeas corpus, and relator appealed.

In Berks County the relator was convicted of breaking and entering a freight car and larceny, and the court entered a lumping sentence of five to ten years. He was released on parole after having served the minimum term of five years, whereupon there remained unserved five years of the maximum sentence.

Before the expiration of the maximum sentence, and in 1938, he was convicted of sodomy in Philadelphia County, and sentenced to the Eastern State Penitentiary for a period of five to ten years, to commence at the expiration of the remaining time under the Berks County sentence. Thereafter the relator became aware of the fact that the Berks County sentence was excessive, in that the sentence should have been for a maximum of four years. He filed an original petition for habeas corpus in this Court, whereupon we amended the Berks County sentence by changing the maximum term from ten to four years. Thus he was not on parole when sentenced in Philadelphia County on the sodomy conviction; and it was directed that the records of the Eastern State Penitentiary be corrected to indicate that the relator's sentence in Philadelphia County commenced on May 16, 1938, instead of at the expiration of the ten year maximum imposed in Berks County. No court had the power to alter the sentence on the sodomy conviction after the term, except for illegality of that sentence.

Commonwealth ex rel. Pyeatte v. Burke, Warden, 158 Pa. Super. 336, 44 A.2d 856.

The relator's minimum term on the sodomy charge having expired May 16, 1943, he was paroled two years and two months prior to the expiration of the maximum term.

While on parole and prior to the expiration of this maximum sentence, he was again convicted in Philadelphia County of assault and battery with intent to commit sodomy, and was sentenced to a term of two and one-half to five years, to commence at the expiration of the uncompleted time on the sentence for the crime of sodomy. Accordingly his most recent sentence would begin to run February 3, 1950, two years and two months time remaining on the previous sentence; and the minimum of the new sentence would therefore expire on August 3, 1952, and the maximum on February 3, 1955. As we previously stated, his sentence could not be changed except for illegality, and there is none here.

The contention now is that either the court below or this Court should "give him credit" for the extra year that he had served under the Berks County conviction. That he did serve such extra year is beyond question.

On his prior writ of habeas corpus ( Commonwealth ex rel. Pyeatte v. Burke, Warden, 158 Pa. Super. 336, 44 A.2d 856) we did everything for this relator that could be done. He had served the extra year on the Berks County conviction and we did the only thing possible, to wit, hold that he was not on parole in the burglary case when he committed the offense of sodomy in Philadelphia County. The relator took no appeal from the conviction of assault and battery with intent to commit sodomy, on which he was sentenced in Philadelphia County; and we have no power to interfere with that sentence, because it was palpably within the limits of The Penal Code.

The whole difficulty with this case is that the relator presses his case before the courts, which have no power to interfere. Such application ought to have been made to the Pardon Board, the only tribunal which has authority to give the relator the one year credit on his sentence to which he is entitled.

The judgment of the court below is affirmed.