Opinion
January 31, 1939.
Criminal law — Sentence — Consecutive sentences — Parole — Necesssity of application — Act of June 29, 1923, P.L. 975.
1. Where the relator was jointly indicted with others on bills charging burglary, each indictment charging the felonious breaking and entry by night into a separate and distinct dwelling house, on different dates, with intent to steal the goods of the householder, and the larceny of such goods; and relator pleaded guilty and, on one indictment, received a sentence to pay a fine, costs of prosecution and undergo an imprisonment of not less than five years or more than ten years in the penitentiary, on the second indictment, a similar sentence, to begin and take effect at the expiration of sentence imposed on the first indictment, and on the third indictment received a similar sentence, to begin and take effect at the expiration of sentence imposed on the second indictment; the sentences imposed amounted to no more than a direction that they should be consecutive rather than concurrent and were not excessive or illegal in violation of the Act of June 29, 1923, P.L. 975.
2. A minimum sentence merely defines the period after which a convict is eligible for parole, and, if he does not secure a parole or pardon, he is not automatically released from prison until the expiration of the maximum time of his sentence.
3. Where a prisoner is confined under two or more consecutive sentences, in order to secure the benefit of the statute relating to minimum terms of sentence, if his conduct has been such to warrant it, he must apply for parole from further service of his first sentence, the parole, if granted, to be effective after the minimum period has been fully served, and, by so doing, if his conduct warrants it, he will be released from prison, on parole, after he has served the sum of the minimum terms of his sentences; otherwise he does not begin to serve his second sentence until the expiration of the maximum term of his first, or so much thereof as had been expired before he made application for parole from further service thereof.
Petition for writ of habeas corpus. Original jurisdiction, No. 114 Misc. Docket, in case of Commonwealth ex rel. Robert Considine v. Stanley P. Ashe, Warden, Western Penitentiary. Rule discharged and petition dismissed.
Petition for writ of habeas corpus.
The relator was jointly indicted with Philip Moran and Raymond Miller on three bills charging burglary, each indictment charging the felonious breaking and entering by night into a separate and distinct dwelling house, on different dates, with intent to steal the goods of the householder, and the larceny of such goods. He pleaded guilty and was sentenced as follows:
On No. 72 December Sessions 1931, to pay a fine of 6 1/4 cents to the Commonwealth of Pennsylvania, costs of prosecution and undergo an imprisonment of not less than five years or more than ten years in the Western Penitentiary.
On No. 68 December Sessions 1931, to pay a fine of 6 1/4 cents to the Commonwealth of Pennsylvania, costs of prosecution and undergo an imprisonment of not less than five years or more than ten years in the Western Penitentiary. This sentence to begin and take effect at the expiration of sentence imposed at No. 72 December Sessions 1931.
On No. 71 December Sessions 1931, to pay a fine of 6 1/4 cents to the Commonwealth of Pennsylvania, costs of prosecution and undergo an imprisonment of not less than five years or more than ten years in the Western Penitentiary. This sentence to begin and take effect at the expiration of sentence imposed at No. 68 December Sessions 1931.
The said sentences were erroneously recorded at the Penitentiary as constituting a minimum term of fifteen years and a maximum term of thirty years.
This was before the Act of June 25, 1937, P.L. 2093.
The relator contends that under the case of Com. ex rel. Lynch v. Ashe, 320 Pa. 341, 182 A. 229, the sentences imposed were illegal in that they amounted to a minimum term of twenty-five years and a maximum term of thirty years, contrary to the provisions of the Ludlow Act, (Act of June 29, 1923, P.L. 975).
The relator has misunderstood the decision in Com. ex rel. Lynch v. Ashe, supra.
The opinion of Mr. Justice MAXEY in that case pointed out: (1) That the act of the prison authorities in lumping two or three consecutive sentences was "without statutory or other legal support"; (2) that "A minimum sentence merely defines the period after which a convict is eligible for parole. If he doesn't secure a parole or a pardon, he is not automatically released from prison until the expiration of the maximum time of his sentence." The opinion further pointed out that a prisoner in confinement under two or more consecutive sentences, in order to secure the benefit of the statute relating to minimum terms of sentence — if his conduct has been such as to warrant it — should "apply for a parole from further service of his first sentence within three months of the expiration of the minimum part of that sentence, the parole, if granted, to be effective after that minimum part [has] been fully served." By so doing, if his conduct warrants it, he will be released from prison, on parole, after he has served the sum of the minimum terms of his sentences. Otherwise he does not begin to serve his second sentence until the expiration of the maximum term of his first, or so much thereof as had expired before he made application for parole from further service thereof.
The sentences in the court below amounted to no more than a direction that they should be consecutive rather than concurrent.
The rule is discharged and the petition is dismissed.