Opinion
December 9, 1938.
Criminal law — Sentence — Excessive maximum sentence — Violation of parole — Habeas corpus — Remanding defendant for re-sentence.
Where a defendant is given a sentence of a minimum and a maximum number of years, but the maximum sentence is in excess of that which may be legally prescribed for the offense charged; and, before the expiration of the minimum sentence, the defendant is placed on parole, for violation of which he is subsequently sentenced to serve the unexpired portion of the original maximum sentence; such sentence should be amended to conform with the maximum provided by statute but the relator is not entitled to discharge, and the appellate court will order him to be remanded to be sentenced according to law.
Petition for writ of habeas corpus. Original jurisdiction, Misc. Docket No. 1014, in case of Commonwealth ex rel. Richard P. Billings, v. Stanley P. Ashe, Warden, State Penitentiary, Western District. Relator remanded and record remitted to Court of Oyer and Terminer to be duly sentenced.
Bill of Indictment No. 52, April Sessions, 1931, in the Oyer and Terminer Court of Allegheny County, charged the relator with robbery, being armed with an offensive weapon. The court imposed a sentence of ten to forty years, but the maximum sentence for the offense is twenty years, and the maximum part of the sentence is therefore illegal. However, this does not entitle relator to be discharged. In June, 1936, he was placed on parole, for violation of which he was sentenced on December 31, 1936, to serve the unexpired portion of the forty-year sentence, amounting to 34 years, 9 months and 5 days. This sentence should be amended to conform with the maximum provided by statute: Commonwealth ex rel. Flory v. Ashe, 132 Pa. Super. 405.
And now, December 9, 1938, it is ordered and adjudged that the relator be remanded and that the record be remitted to the Court of Oyer and Terminer of Allegheny County to the end that the proper process may be issued to bring him into court for a re-sentence in accordance with law, taking into consideration the time that he has already served.