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COMMONWEALTH EX REL. HOLLY v. ASHE (COMMONWEALTH (06/27/51)

June 27, 1951

COMMONWEALTH EX REL. HOLLY
v.
ASHE (COMMONWEALTH, APPELLANT)



Appeal, No. 72, March T., 1951, from order of Superior Court of Pennsylvania, April T., 1950, No. 57, reversing order of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 2821, in case of Commonwealth of Pennsylvania ex rel. John J. Holly v. Stanley P. Ashe, Warden, Western State Penitentiary. Order reversed.*fn*

COUNSEL

John I. Munson, Assistant District Attorney, with him Fred L. Brothers, District Attorney and Owen B. McManus, Assistant District Attorney, for appellant.

Valera Grapp, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Jones

[ 368 Pa. Page 212]

OPINION BY MR. JUSTICE JONES

This matter is her on the petition of the relator for a writ of habeas corpus and separate answers by the

[ 368 Pa. Page 213]

    district attorneys of Fayette and Allegheny Counties and the Warden of the Western State Penitentiary. The material facts are not in dispute.

The petitioner is confined under sentences imposed upon him by the Court of Oyer and Terminer of Fayette County for certain crimes whereof he was duly convicted. He seeks release from detention on the ground that the court's power to impose sentence had become extinct by prior expiration of the term at which he had been found guilty. The petition was addressed to the Court of Common Pleas of Allegheny County, the jurisdiction of the situs of the relator's detention, and was by that court refused. On the relator's appeal, the Superior Court reversed, one judge dissenting. Because of the public importance of the question for decision, we allowed an appeal on the petition of the district attorney of Fayette County.

The relator was tried and convicted on December 12th and 14th, 1946, in the Court of Oyer and Terminer of Fayette County in separate trials on two indictments. He duly filed a motion for a new trial in each case. Argument on these motions was had before the court en banc on February 10, 1947, and, on February 26, 1947, the court entered an order denying both motions. All of this occurred during the December term of court.*fn1 Five days later, to wit, on March 3, 1947, which was the first day of the succeeding March term, the relator was sentenced on each of the indictments to the Western State Penitentiary, the sentences to run consecutively.

The Superior Court approved the relator's contention in reliance upon an unreported per curiam opinion

[ 368 Pa. Page 214]

    of this court in Commonwealth of Pennsylvania ex rel. Henry Boyer v. Stanley P. Ashe, Warden of Western State Penitentiary, Pittsburgh, Pennsylvania, No. 1576 Miscellaneous Docket, Western District, where it was said that "Where a court does not sentence a defendant and does nothing to preserve its power to later sentence, it does not have the power to sentence the defendant at a subsequent term of court: Commonwealth ex rel. Michelotti v. Ashe, Warden, 359 Pa. 542." Not only does the Michelotti case not support the proposition for which it is there cited but the broad language of the quoted statement exceeded the requirements of the case. As the opinion in the Boyer case reveals, -- "Petitioner was [at the time of his conviction] accepted for military service and was released by the court without formal order deferring or suspending sentence" (Emphasis the author's). It was not until a year later when Boyer (while still in the Army) was returned to the court to plead guilty to another indictment, whereon he was at once sentenced, that the court assumed to pass sentence on the two convictions of the year before. It was the latter belated sentences that were voided in Commonwealth ex rel. Boyer v. Ashe, and rightly so, but not because the term of the conviction had passed. The true ratio decidendi of the Boyer case is that the trial court deliberately permitted its power to sentence the relator to go unexercised because of the special circumstances attending his pleas of guilty to the indictments then presented against him. The case was disposed of on the relator's petition without argument before this court and it is not discernible from the record how many members of the court actually participated in the unreported memorandum opinion in that case.

But, even if the Boyer case must be accepted as a ruling that a court loses its power to sentence one found guilty of crime upon the expiration of the term

[ 368 Pa. Page 215]

    of court at which he was convicted, it is the only instance, so far as the decided cases show, where it has been so held. True, there are dicta to such effect in some of our cases, but it will be found in every one of them that the trial court had assumed to exercise its sentencing power, which then became functus, and that, after the term, the court undertook to resentence or to sentence afresh on other convictions which had been before the court when it originally exercised its power to sentence with respect to the particular defendant.

In Commonwealth ex rel. Michelotti v. Ashe, Warden, 162 Pa. Superior Ct. 18, 20, 56 A.2d 313, President Judge RHODES, speaking for a unanimous court, had correctly stated that, -- "In a case where no sentence has been imposed during the term, an order of the court specifically remanding for sentence, or specifically suspending sentence to a later term, is not absolutely necessary.If, through inadvertence or oversight on the part of the court, sentence is not pronounced during the term at which the case is tried, the court may impose sentence at a subsequent term. 15 Am. Jur., Criminal Law, ยง 487, p. 141; 3 A.L.R. 1003; 97 A.L.R. 802. This practice prevails in the criminal courts of this state" (Emphasis supplied). It is true that we reversed the Superior Court's order in the Michelotti case (see Commonwealth ex rel. Michelotti v. Ashe, Warden, 359 Pa. 542, 59 A.2d 891) but obviously because the trial court's power to sentence had become functus, having once been exercised and the sentence vacated without a reservation of power to resentence after the expiration of the term at which action was originally taken. That that is so ...


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