Com. ex rel. Johnson v. Maroney

• Decision Date: 13 June 1963
• Citation: 201 Pa.Super. 248,191 A.2d 704
• Parties: COMMONWEALTH of Pennsylvania ex rel. Lewis F. JOHNSON, Appellant, v. James F. MARONEY, Superintendent, State Correctional Institution, Pittsburgh, Pa.
• Court: Pennsylvania Superior Court

Page 704

191 A.2d 704

201 Pa.Super. 248

COMMONWEALTH of Pennsylvania ex rel. Lewis F. JOHNSON, Appellant, v. James F. MARONEY, Superintendent, State Correctional Institution, Pittsburgh, Pa.

Superior Court of Pennsylvania.

June 13, 1963.

Lewis F. Johnson, in pro. per.

Michael A. Hanna, Dist. Atty., Washington, for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

RHODES, President Judge.

This is an appeal by relator from an order of the Court of Common Pleas of Washington County refusing his petition for a writ of habeas corpus without a hearing.

Relator was arrested on September 5, 1959, on six counts of burglary and larceny, and pleaded guilty to said charges on October 13, 1959, at Nos. 203, 204, 205, and 206, September Sessions, 1959, in the Courts of Quarter Sessions and Oyer and Terminer of Washington County. He was then sentenced to the Western State Penitentiary to serve a term of four to eight years on each count, the sentences to run concurrently. The court stated that the sentences were to begin on September 5, 1959, the date of relator's arrest. Following conviction and sentences, relator was returned to the same institution as a parole violator on a previous commitment. Relator was informed by the prison officials that he was required to serve the balance of his previous sentence, under which there remained a period of twenty-three months and twenty-seven days, before the other sentences would begin on run. See Com. ex rel. Smith v. Hendrick, 196 Pa.Super. 289, 291, 175 A.2d 92.

In his petition for writ of habeas corpus relator contends (1) that the prison officials had no legal right to change the effective date of his sentences imposed on October 13, 1959; (2) that the record of the criminal proceedings show that his pleas of guilty were entered without an intelligent waiver of counsel; (3) and that he was not advised of constitutional rights to counsel.

Relator's first contention is without merit. Relator is required by law to serve the balance of the unexpired portion of the first sentence before commencing service of the sence for the crimes committed while on parole. Act of June 19, 1911, P.L. 1055, § 10, as amended, 61 P.S. § 305; Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.21a. ¹ The manner and order of service of imprisonment having been specified by law, the courts are powerless to change it. Com. ex rel. Godfrey v. Banmiller, 404 Pa. 401, 404, 171 A.2d 755; Com. ex rel. Wright v. Maroney, Pa.Super. 191 A.2d 866.

In the present habeas corpus proceeding the District Attorney did not file an answer to the relator's petition. Therefore relator's averment of circumstances entitling him to counsel on his pleas of guilty stands undenied. Orderly proceedings require that a district attorney file an answer to habeas corpus petitions in criminal cases so that relevant factual and legal questions may be presented to the court.

We not that no hearing was held on this petition. Whether or not a prisoner should be produced for a hearing in a habeas corpus proceeding is determined by the issue raised in the particular case. Com. ex rel. Gaurich v. Keenan, 181 Pa.Super. 619, 622, 623, 124 A.2d 144.

We believe that the District Attorney of Washington County must file an answer to the habeas corpus petition for a proper determination of the vital issue raised below, and that a hearing...