Com. ex rel. Sparks v. Russell

• Decision Date: 17 April 1961
• Citation: 403 Pa. 320,169 A.2d 884
• Parties: COMMONWEALTH of Pennsylvania ex rel. Roy R. SPARKS, Appellant, v. Harry E. RUSSELL, Superintendent, Correctional Institution at Huntingdon, and Pennsylvania State Board of Parole.
• Court: Pennsylvania Supreme Court

169 A.2d 884

403 Pa. 320

COMMONWEALTH of Pennsylvania ex rel. Roy R. SPARKS, Appellant, v. Harry E. RUSSELL, Superintendent, Correctional Institution

at Huntingdon, and Pennsylvania State Board of Parole.

Supreme Court of Pennsylvania.

April 17, 1961.

Roy R. Sparks, in pro. per., for appellant.

Frank P. Lawley, Jr., Deputy Atty. Gen., Anne X. Alpern, Atty Gen., for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R JONES, COHEN, BOK and EAGEN, JJ.

PER CURIAM.

This is an appeal in forma pauperis by the relator from the judgment of the court below denying his petition for a writ of mandamus directed to the Superintendent of the correctional institution where he is presently incarcerated and to the Pennsylvania Board of Parole. The following opinion for the court below abundantly justifies its action in the premises.

'The petitioner is a prisoner at the State Correctional Institution at Huntingdon, Pennsylvania, and has filed a petition propria persona in forma pauperis wherein he complains that he is being illegally and unlawfully detained by the Pennsylvania Parole Board and the Warden of the aforesaid said prison. The Attorney General has filed a preliminary objection in the nature of a demurrer to the petition averring that the plaintiff does not state a valid cause of action.

'The petitioner was sentenced on September 26, 1949 by the Crawford County Court of Oyer & Terminer to a term of not less than two and one-half (2 1/2) years nor more than ten (10) years in the Western State Penitentiary to commence and be computed from August 26, 1949. He was released on parole May 21, 1952 after having served two (2) years, eight (8) months and twenty-five (25) days.

'On June 14, 1954, he was arrested in Ohio on the charge of attempted burglary. At that time a detainer was lodged against him by the Pennsylvania Parole Board. On October 13, 1954 an Ohio court of competent jurisdiction placed him on probation for a period of five (5) years and his parole was reinstated by the Pennsylvania Parole Board. He was placed under the supervision of the Ohio state parole authorities. The record indicates that on December 13, 1954 he absconded from supervision and on March 15, 1956 was arrested in Michigan and returned to the Ohio state authorities as a parole violator. His Ohio parole was revoked and he was sentenced by the Ohio court to a term of not less than one (1) year nor more than fifteen (15) years. On April 10, 1959 he was returned by the Ohio authorities to the Pennsylvania Parole Board and was recommitted to the Western State Penitentiary as a parole violator.

'The petitioner became a convicted parole violator on June 14 1954 when he was arrested in Ohio for attempted burglary because he was subsequently convicted of that offense. Because of that conviction the Pennsylvania Board of Parole in its discretion, was authorized to recommit petitioner as a convicted parole violator and forfeited any credit for the time he was at liberty on parole, Act of August 6, 1941, P.L. 861, § 21.1 added 1951, August 24, P.L. 1401, § 5, as amended 1957, June 28, P.L. 429, § 1, 61 P.S. 331.21a (pocket parts).

'The parole of a prisoner at the expiration of his minimum term is not a matter of right, it is a matter of grace and mercy and the granting, reinstatement and revocation of parole is within the exclusive jurisdiction of the Parole Board, Commonwealth ex rel. Nornhold v. Day, 67 Dauphin 1 (1954).

'A parole is not an act of clemency but a penological measure for...