Commonwealth Ex Rel. Biancone v. Burke , 164 Pa. Super. 486 ( 1949 )

This is a petition for writ of habeas corpus. The relator, Louis J. Biancone, pleaded guilty to five bills of indictment (Nos. 132, 132-a, 132-b, 132-c, and 134, September Sessions, 1948) in the Court of Quarter Sessions of Berks County. Each of these bills charged him with the offense of having unlawfully issued worthless checks. Thereafter, on September 23, 1948, the court sentenced him to serve five consecutive terms of imprisonment in the Berks County Prison — one to two years on bill No. 132, commencing August 11, 1948, and three months to two years on each of the four remaining bills, making an aggregate of two to ten years. Relator was transferred on November 27, 1948, from the Berks County Prison to the Eastern State Penitentiary pursuant to an order made by the Department of Welfare. This was upon a petition for transfer filed by the Warden of the Berks County Prison, to which the consent of the Court of Quarter Sessions of Berks County was given. The proceeding was under the provisions of section 1 of the Act of July 11, 1923, P.L. 1044, amended by the Act of April 23, 1929, P.L. 640, 61 P. S. § 72.

Relator's principal complaint is that the court erroneously imposed indeterminate sentences for the offenses of which he had been convicted. The District Attorney of Berks County concedes the validity of this contention. Punishment for the crime of issuing worthless checks, prescribed by section 854 of the Act of June 24, 1939, P.L. 872, 18 Pa.C.S.A. § 4854, is simple imprisonment not exceeding two years, or fine not exceeding one thousand dollars, or both. The imposition of indeterminate sentences in this case was therefore erroneous and should be corrected. Com. ex rel.Webb v. Cain, 158 Pa. Super. 222, 44 A.2d 606; Com. exrel. Zambelli v. Smith, 153 Pa. Super. 411, 413,33 A.2d 925.

It is ordered that the prisoner be remanded to the Court of Quarter Sessions of Berks County for resentence on bills Nos. 132, 132-a, 132-b, 132-c, and 134, September Sessions, 1948, by imposing definite or fixed sentences pursuant to law. See Com. v.Downer, 161 Pa. Super. 339, 342,53 A.2d 897; Com. ex rel.v. Smith, 324 Pa. 73, 74, 187 A. 387.