Joseph J. Marticelli, Freeland, for appellant.
Louis G. Feldmann, Dist. Atty., Nathan Hyman, Asst. Dist. Atty., Wilkes-Barre, for appellee.
Before Rhodes, P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 648]
This is an appeal by relator from the order of President Judge Valentine of the Court of Common Pleas Of Luzerne County dismissing petition for a writ of habeas corpus and discharging the rule granted thereon. Counsel was appointed by the court below to represent relator in the prosecution of his appeal.
Relator has a lengthy criminal record, involving sex offenses. On February 2, 1936, as a juvenile, he was committed to Kis-Lyn School upon a charge of indecent assault. He was released two months thereafter but by reason of a subsequent delinquency he was returned to Kis-Lyn on October 10, 1936, where he remained until discharged on December 17, 1938. In June, 1939, he received a one-year sentence to the Luzerne County Prison for indecent exposure; he was paroled on April 2, 1940. On July 9, 1940, he entered a plea of guilty to a charge of sodomy at No. 493, June Sessions, 1940, in the Court of Oyer and Terminer of Luzerne County; he received a general sentence to the Pennsylvania Industrial School at Huntingdon. This is the sentence which relator questions in the present appeal. After being paroled on May 1, 1945, he was convicted upon a charge of open lewdness in Newark, New Jersey, in March, 1946, for which he was sentenced for a term of two to three years in the New Jersey State Prison. Upon his parole from that institution on August 29, 1947, he was returned on a detainer to the Pennsylvania Industrial School as a parole violator by reason of his conviction of a crime committed while
[ 170 Pa. Super. Page 649]
on parole. On September 4, 1947, relator was transferred to the Eastern State Penitentiary pursuant to the provisions of the Act of April 28, 1887, P.L. 63, § 10, 61 P.S. § 495,*fn1 and the Act of June 21, 1937, P.L.1944, § 6, as amended by the Act of March 26, 1945, P.L. 60, § 4, 61 P.S. § 545-6. It appears that his maximum sentence will expire on November 7, 1952.
Relator avers in his petition that his confinement in the Eastern State Penitentiary is 'a deprivation of liberty without due process of law in violation of the Fourteenth Amendment' because at the time he pleaded guilty to the sodomy charge he was only eighteen years old, was not provided with counsel, and was not advised that he was entitled to the benefit of counsel at that time.
The District Attorney of Luzerne County claims that prison records indicate the age of relator at the time of entry of the plea as being twenty years rather than eighteen. For the purpose of this decision, however, we view the discrepancy as immaterial.
The failure to provide counsel when none is requested or to advise a defendant that counsel will be assigned him upon request does not constitute, ipso facto, a denial of due process or other violation of a defendant's constitutional rights in non-capital cases. Com. ex rel. McGlinn v. Smith, 344 Pa. 41, 49, 24 A.2d 1; Com. ex rel. Withers v. Ashe, 350 Pa. 493, 39 A.2d 610; Com. ex rel. Townsend v. Burke, 361 Pa. 35, 39, 63 A.2d 77; Com. ex rel. Berry v. Ashe, 167 Pa. Super. 171, 74 A.2d 727; Com. ex rel. Hovis v. Ashe, 165 Pa. Super. 30, 67 ...