Commonwealth Ex Rel. Penland v. Ashe, Warden

This is a petition for writ of habeas corpus. Relator was sentenced on November 14, 1929, by the Court of Oyer and Terminer of Allegheny County, at No. 39, November Term, 1929, on an indictment charging robbery for a term of not less than six years nor more than twelve years. On May 22, 1931, he escaped from Rockview State Penitentiary in Centre County to which he had been transferred from the Western State Penitentiary. On May 26, 1931, relator was sentenced for breaking and escaping the penitentiary by the Court of Quarter Sessions of Centre County at No. 16, September Sessions, 1931, for a term of not less than six years nor more than twelve years, to be computed from the expiration of his original sentence for robbery.

Relator filed a petition in this court for a writ of habeas corpus to set aside the sentence of six to twelve years at No. 39, November Sessions, 1929, because of noncompliance with provisions of the Act of April 15, 1907, P.L. 62, 19 P. S. § 241. We set aside the sentence imposed at No. 39, November Sessions, 1929. Commonwealth ex rel. Penland v. Ashe, 142 Pa. Super. 403, 17 A.2d 224. But we held that the original sentence was effective until set aside, and that when so set aside the sentence for breaking and escaping prison would commence and date from the entering of the order setting aside the prior sentence; and that, "The relator will, therefore, be confined in the penitentiary for a period of not less than six years nor more than twelve years, to be computed from the date [January 3, 1941] of this order."

Relator then filed his petition for writ of habeas corpus in the Supreme Court on February 21, 1941. The Supreme Court dismissed relator's petition. Commonwealth ex rel. Penland v.Ashe, 341 Pa. 337, 19 A.2d 464.

The issues raised in relator's present petition were raised in his petition to the Supreme Court. Relator's petition will be dismissed. Cf. Commonwealth ex rel. Maurice v. Smith, 150 Pa. Super. 455, 28 A.2d 811.

Petition is dismissed.