Summary
In Commonwealth ex rel. Lowry v. Pennsylvania Board of Parole, 415 Pa. 90, 202 A.2d 98 (1964), the Pennsylvania Supreme Court indicated that the proper method by which a prisoner could challenge the aggregation of his sentences was through a mandamus action.
Summary of this case from Gillespie v. Dept. of Corr. et alOpinion
Submitted April 22, 1964.
July 1, 1964.
Criminal law — Sentence — Consecutive sentences — Running of minimum and maximum terms — Computation together of consecutive sentences — Act of June 25, 1937, P. L. 2093.
In this appeal from an order dismissing a petition for a writ of mandamus in which it appeared that petitioner was sentenced to serve consecutive terms of imprisonment of not less than 2 1/2 nor more than 5 years on each of two indictments, commencing with November 5, 1954; and petitioner contended that the second sentence began to run at the expiration of the minimum term of the first sentence, so that in effect his total maximum sentence would amount to 7 1/2 instead of ten years, and, in view of the fact he has served more than 7 1/2 years he is entitled to a release and final discharge from the sentences, it was Held (1) in view of the Act of June 25, 1937, P. L. 2093, § 1, for parole purposes the sentences imposed upon petitioner were for a minimum of five years and a maximum of ten years; (2) the second of consecutive sentences does not begin at the expiration of the minimum term of the first sentence; and (3) the petition does not state a cause of action.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 39, May T., 1964, from order of Court of Common Pleas of Dauphin County, No. 25 Commonwealth Docket, 1964, in case of Commonwealth ex rel. James E. Lowry v. Pennsylvania Board of Parole. Order affirmed.
Mandamus.
Defendant's preliminary objections sustained and petition dismissed, opinion by SHELLEY, J. Petitioner appealed.
James E. Lowry, appellant, in propria persona.
Frank P. Lawley, Jr., Deputy Attorney General, and Walter E. Alessandroni, Attorney General, for appellee.
James E. Lowry filed a petition for a Writ of Mandamus seeking to compel the Pennsylvania Board of Parole to issue ". . . a release and final discharge from the sentences of this case." He was sentenced to serve a term of imprisonment of not less than two and one-half nor more than five years on each of two indictments. The terms of imprisonment were to run consecutively, the first of which was to commence and be computed from November 5, 1954. Lowry, on at least two separate occasions, violated his parole. The lower Court sustained the Board's preliminary objections in the nature of a demurrer.
The indictments charged him with larceny and receiving stolen goods.
We find no merit in the Petition.
Order affirmed on the Opinion of Judge CARL B. SHELLEY.