Com. ex rel. Salerno v. Banmiller
| Court | Superior Court of Pennsylvania |
| Writing for the Court | WOODSIDE; RHODES, P. J., and WRIGHT |
| Citation | 149 A.2d 501,189 Pa.Super. 156 |
| Parties | COMMONWEALTH of Pennsylvania ex rel. James F. SALERNO, Appellant, v. William J. BANMILLER, Warden, Eastern State Penitentiary. |
| Decision Date | 18 March 1959 |
Page 501
v.
William J. BANMILLER, Warden, Eastern State Penitentiary.
[189 Pa.Super. 158]
Page 502
Paul N. Gardner, Philadelphia, for appellant.Charles L. Durham, Juanita Kidd Stout, Asst. Dist. Attys., James N. Lafferty, First Asst. Dist. Atty., Victor H. Blanc, Dist. Atty., Philadelphia, for appellee.
[189 Pa.Super. 157] Before RHODES, P. J., and HIRT, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.
[189 Pa.Super. 158] WOODSIDE, Judge.
This is an appeal from the order of the court below dismissing a petition for a writ of habeas corpus brought by a prisoner seeking his release.
The relevant facts are as follows: The petitioner, James F. Salerno, was sentenced in Philadelphia to a term of 1 to 3 years, effective April 9, 1954. He was received in the Eastern Correctional Diagnostic and Classification Center and from there transferred to the State Penitentiary at Graterford,
Page 503
from which he was released on parole, April 9, 1955. For an offense committed while on parole, he was sentenced June 15, 1956, to the Eastern Correctional Diagnostic and Classification Center to serve a term of 1 to 4 years. He was received in the center the same day and transferred to the State Penitentiary at Graterford September 9, 1956. When he was returned to prison, the Board of Parole and the prison authorities listed him as serving the term of 1 to 4 years to which he was sentenced while on parole. May 2, 1958, he was paroled from this sentence in order to commence serving his [189 Pa.Super. 159] 'back time' as a parole violator on the original sentence of 1 to 3 years.The petitioner has detainers filed against him for other offenses. The legality of these detainers has not been questioned by him in this proceedings.
The petitioner's basic contention is, in effect, that he should have been required to serve his back time as a parole violator before starting his second sentence, and since he was not required to do so, he cannot be required to serve any time as a parole violator.
The petitioner argues that section 21.1 added to the Act of August 6, 1941, P.L. 861, by the Act of August 24, 1951, P.L. 1401, 61 P.S. § 331.21a, provided at the time of his recommitment that 'If a new sentence is imposed upon him to be served in the same institution from which paroled, then the service of the balance of said term originally imposed shall precede the commencement of the new term imposed for the latter crime.' The section further provides: 'If a new sentence is imposed upon him to be served in any institution other than the one from which paroled, then the service of the new term for the latter crime shall precede the commencement of the balance of the term originally imposed.'
When the Act of 1951 was passed, the penal institution at Graterford was a part of the Eastern State Penitentiary and the institution at Rockview was a part of the Western State Penitentiary.
By the Acts of July 29, 1953, P.L. 1424, P.L. 1427; P.L. 1428, P.L. 1433, P.L. 1435, 61 P.S. §§ 340.1, 340.2, 911 et seq.; 71 P.S. §§ 62, 301-305, 306 and others, the commonwealth's penal system was reorganized. The penal institution at Graterford was made a separate institution termed the State Penitentiary at Graterford. Sentences from the eastern part of the state, formerly made to the Eastern State Penitentiary, were thereafter made to the Eastern Correctional Diagnostic and Classification Center from where the prisoners after study [189 Pa.Super. 160] are sent to one of the state penal institutions. The question then arose whether a prisoner paroled from the Graterford institution when it was a part of the Eastern State Penitentiary and then sentenced after the passage of the above acts for a new term to the center was, under the above Act of 1951, sentenced to the 'same institution from which paroled.' The Board of Parole, upon the advice of the Attorney General, concluded that one so sentenced was not sentenced to the same institution. When the identical question was raised in relation to the State Penitentiary at Rockview the Court of Common Pleas of Dauphin County in a mandamus action decided in cases unappealed from, that the interpretation made by the board was...
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Com. ex rel. Stevens v. Myers
...ex rel. Appellant [sic] v. Ashe, 320 Pa. 341, 344, 345, 182 A. 229, 230-231 (1936); Commonwealth ex rel. Salerno v. Banmiller, 189 Pa.Super. 156, 161, 149 A.2d 501, 504 (1959). Since petitioner has not been paroled, he is presently Page 616 serving a sentence which he does not challenge. 5 ......
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Tiernan v. Devoe, No. 89-2024
...with authority to settle the case upon principles of apparent authority akin to those above referred to." 189 Pa.Super. at 52-53, 149 A.2d at 501. We acknowledge that this area is clouded somewhat by the fact that the Pennsylvania Supreme Court has on occasion stated without qualification t......
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Com. v. Dorian
...see e.g. Commonwealth ex rel. Haun v. Cavell, 190 Pa.Super. 346, 154 A.2d 257 (1959); Commonwealth ex rel. Salerno v. Banmiller, 189 Pa.Super. 156, 149 A.2d 501 (1959); Commonwealth ex rel. Dion v. Martin, 183 Pa.Super. 310, 131 A.2d 150 (1957); Commonwealth ex rel. Backus v. Burke, 174 Pa.......
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United States v. Banmiller, Misc. No. 2188.
...Commonwealth ex rel. Brockway v. Keenan, 1955, 180 Pa.Super. 78, 118 A.2d 255; but see Commonwealth ex rel. Salerno v. Banmiller, 1959, 189 Pa.Super. 156, 149 A.2d The federal rule, however, is that habeas corpus will not lie to attack a sentence which the petitioner has not yet begun to se......
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Tiernan v. Devoe, No. 89-2024
...with authority to settle the case upon principles of apparent authority akin to those above referred to." 189 Pa.Super. at 52-53, 149 A.2d at 501. We acknowledge that this area is clouded somewhat by the fact that the Pennsylvania Supreme Court has on occasion stated without qualification t......
-
Com. ex rel. Stevens v. Myers
...ex rel. Appellant [sic] v. Ashe, 320 Pa. 341, 344, 345, 182 A. 229, 230-231 (1936); Commonwealth ex rel. Salerno v. Banmiller, 189 Pa.Super. 156, 161, 149 A.2d 501, 504 (1959). Since petitioner has not been paroled, he is presently Page 616 serving a sentence which he does not challenge. 5 ......
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Com. v. Dorian
...see e.g. Commonwealth ex rel. Haun v. Cavell, 190 Pa.Super. 346, 154 A.2d 257 (1959); Commonwealth ex rel. Salerno v. Banmiller, 189 Pa.Super. 156, 149 A.2d 501 (1959); Commonwealth ex rel. Dion v. Martin, 183 Pa.Super. 310, 131 A.2d 150 (1957); Commonwealth ex rel. Backus v. Burke, 174 Pa.......
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United States v. Banmiller, Misc. No. 2188.
...Commonwealth ex rel. Brockway v. Keenan, 1955, 180 Pa.Super. 78, 118 A.2d 255; but see Commonwealth ex rel. Salerno v. Banmiller, 1959, 189 Pa.Super. 156, 149 A.2d 501.293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. See Parker v. Ellis, 1960, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963, and Heflin v......