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July 17, 1952



Earl F. Reed, Jr., Pittsburgh, for appellant.

Joseph A. Dague, Dist. Atty., Dan P. Arnold, Asst. Dist. Atty., Clearfield, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Gunther, JJ.

Author: Hirt

[ 172 Pa. Super. Page 14]

HIRT, Judge.

Appellant, Michael Hoopsick on September 27, 1950 pleaded guilty to charges of burglary, larceny and attempted burglary. His pleas signed by him, were endorsed on the indictment. He was sentenced to pay a fine and to undergo imprisonment in the Western Penitentiary for a term of from 2 to 12 years. On December 15, 1951, he presented his petition for habeas corpus to the lower court in which he had been sentenced; the writ was refused without hearing. In this appeal from that order appellant contends that he was denied due process because the judge in sentencing him was under a misapprehension as to his past criminal record and was influenced by the opinions of 'several [unidentified] people in Osceola' that he had induced a group of younger boys to commit the crimes. The appellant was represented by counsel when sentenced but it is averred that the erroneous assumptions of fact which affected the sentence were not known to either appellant or his attorney at that time. Appellant contends that he first had notice of the facts in a letter from the judge received by him after sentence. It is also averred that a second letter written to him by the sentencing judge indicates that his petition for a writ of habeas corpus was refused by the lower court because

[ 172 Pa. Super. Page 15]

    of bias and prejudice and misinformation as to the facts.

On August 18, 1950, a gasoline station and a garage in Houtzdale were broken into and two generators and a battery tester were taken from the service station. In addition to appellant, three others pleaded guilty to all of the offenses although the actual breaking in both instances was committed by one of them, Charles LeForte. On September 29, 1950, the court invited statements from all four defendants and they were examined in open court in the presence of the same counsel who had represented them when their pleas of guilty were entered. From the testimony at that hearing it appears that about 9 p.m. on the day in question appellant in his automobile undesignedly came upon the three other defendants, who had been drinking since early in the evening, and he then invited them to go for a ride. All of the testimony at this hearing was to the effect that appellant was not a party to any plan nor did he have knowledge that burglaries were contemplated by any of the group. At a second hearing before the sentencing judge on October 9, 1950, the three other defendants changed their testimony and then stated that they had perjured themselves at the prior hearing. Two of them then attempted to implicate Hoopsick in the commission of the offenses by testimony to the effect that it was he who suggested the crimes and selected the places to be burglarized. Since appellant's co-defendants exonerated him at one hearing and charged him with complicity in the crimes at another, their diametrically opposed statements under oath deprived their testimony of all probative value. Cf. Commonwealth v. Billingsley, 160 Pa. Super. 140, 147, 50 A.2d 703.

At both hearings Hoopsick denied that he knew of LeForte's intention to break into either the gasoline

[ 172 Pa. Super. Page 16]

    station or the garage although at LeForte's suggestion he stopped his automobile at both places. The two generators taken from the garage were put into Hoopsick's car. They were removed from the car the same night by Robert Fish, one of the group, when Hoopsick drove to his home. Fish later disposed of the stolen property by throwing it into a nearby pond. The basis of appellant's plea of guilty was thus stated by him when cross-examined by the District Attorney: 'Are you pleading guilty to this burglary and attempted burglary? A. I am pleading guilty to driving the car while it was committed. Q. You are not going to do that. You are either going to plead guilty to the burglary and larceny and attempted burglary, or else you are going to stand trial. A. I will plead guilty to it'. At the preliminary hearing Hoopsick asserted his innocence; the other three all pleaded guilty. Other relevant facts before the sentencing judge were these: Hoopsick was 25 years old; he had been in trouble once before in connection with the larceny of an automobile, as a result of which he was paroled on payment of a fine. The youngest of the three co-defendants was 19 years of age; each of them had been in conflict with the law on at least one prior occasion. There is nothing in this record to indicate that Hoopsick had any connection with the prior crimes committed by any of them.

The petition for habeas corpus (inartistically drawn by relator without aid of counsel) in effect alleged that sentence was imposed by the court on a misconception of relator's past conduct and the extent of his participation in the crimes to which he had entered pleas of guilty. That his petition was not seriously considered by the court is evident from this excerpt from a letter written by the ...

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