The opinion of the court was delivered by: GOURLEY
This is a habeas corpus proceeding arising out of a state prosecution.
Petitioner has filed divers applications and petitions before the State and Federal courts since May 25, 1931. In order that a complete and thorough understanding can be presented as to the background of this proceeding and to bring about a final adjudication of the question which exists, it is necessary to set forth in some detail the circumstances.
Petitioner, Harry Collins, plead guilty in the Court of Quarter Sessions of Allegheny County, Pennsylvania, on May 25, 1931, to a charge of a felonious breaking and entering with intent to steal. The maximum term of imprisonment under the provisions of law was ten years, Section 2 Act of April 22, 1863, P.L. 531, as amended by the Act of March 13, 1901, P.L. 49, 18 Penna. Purdon's Statutes, § 3042. This section of the Criminal Code which had application on the date of the offense committed by petitioner was consolidated by act of legislature in the Commonwealth of Pennsylvania with the offense of breaking and entering in the night time. 18 Pa.P.S. § 4901.
The court, before whom the plea was entered, sentenced the petitioner to undergo an imprisonment of not less than five years or more than twenty years in the Western State Penitentiary. The sentence carried the following notation:
'This sentence is imposed pursuant to Act of Assembly approved April 29, 1929, P.L. 854 § 1, 19 Pa.P.S. § 921, and Act of June 24, 1939, P.L. 872 § 1108, 18 Pa.P.S. § 5108.' (Said Act of Assembly is known as the Pennsylvania Habitual Criminal Act.)
Said Act provides that under certain conditions a person convicted of certain named crimes within five years of the date of the offense to which a plea is entered may be given double the maximum sentence.
The indictment to which the petitioner entered the plea in the Court of Quarter Sessions of Allegheny County, Pennsylvania, charged the defendant with unlawfully, wilfully and maliciously entering a place of business owned by Masi Lupori, and committing the crime of larceny on the 9th day of May, 1931.
The crime which the petitioner committed in Connecticut was of the type designated in the Pennsylvania Habitual Criminal Act, and was within the period of five years from the date of the offense in Pennsylvania.
It is contended that the petitioner could not be sentenced as a second offender under the Pennsylvania Habitual Criminal Act of 1929 supra, where the previous conviction is based on the entry of a plea of nolo contendere. In my opinion, the contention is without merit.
A plea of nolo contendere has the same effect as a plea of guilty and a sentence pronounced upon that plea amounts to a conviction. The plea of nolo contendere is a mild form of pleading guilty and it has the same effect as a plea of guilty so far as concerns the proceedings upon the indictment. United States v. Dasher, D.C., 51 F.Supp. 805; Berlin v. United States, 3 Cir., 14 F.2d 497; Hudson v. United States, 3 Cir., 9 F.2d 825, affirmed 272 U.S. 451, 47 S. Ct. 127, 71 L. Ed. 347; United States v. Bradford, 2 Cir., 160 F.2d 729, certiorari denied 331 U.S. 829, 67 S. Ct. 1351, 91 L. Ed. 1844; United States v. Gallagher, D.C., 94 F.Supp. 640; 22 C.J.S., Criminal Law, § 425, p. 658.
The plea of nolo contendere which was entered by the petitioner in the County of New Haven, State of Connecticut, to the first count of the indictment in said jurisdiction, had the same effect as a plea of guilty, and the sentence pronounced upon said plea amounts to a conviction.
After the petitioner served nine years and six months of the sentence imposed in the Court of Quarter Sessions of Allegheny County, Pennsylvania, more particularly on November 25, 1940, he was paroled by the Parole Board of the Commonwealth of Pennsylvania.
On the 20th day of April, 1942, petitioner was sentenced by a court of competent jurisdiction in Winnebago County, Wisconsin, after a conviction by jury for the crime of unlawfully, wilfully and feloniously breaking into a building in the night time, with intent to commit the crime of larceny for an offense committed on the 20th day of January, 1942, within said jurisdiction, the sentence imposed being confinement to the Wisconsin State Penitentiary for a period of one to five years.
On August 3, 1943, the Board of Parole of the Commonwealth of Pennsylvania ordered the petitioner returned to the Western State Penitentiary of the Commonwealth of Pennsylvania, within the jurisdiction of this court, as a convicted violator after the fulfillment of the Wisconsin sentence. At the completion of his sentence in the State Penitentiary at Wisconsin, the petitioner was unsuccessful in his endeavor to evade extradition and was returned to the Western State Penitentiary of the Commonwealth of Pennsylvania on January 7, 1946. He was interviewed at said institution by representatives of the Pennsylvania Parole Board on February 4, 1946, and was formally recommitted to said institution by the Pennsylvania Parole Board of February 6, 1946. When recommitted to the institution, the petitioner owed ten years and six months back parole time with his maximum sentence to expire July 5, 1956.
On March 16, 1950, in view of the fact that petitioner had not exhausted his state remedies, and although a complete and exhaustive hearing was held, the court dismissed a similar habeas corpus proceeding for lack of jurisdiction and did not dispose of the questions raised on the merits. United States ex rel. Collins v. Ashe, Warden, D.C., 90 F.Supp. 463.
In addition thereto, the Court extended to the petitioner a full, complete and exhaustive opportunity to submit any additional oral or documentary testimony which was desired. The petitioner has expressed full, complete and absolute satisfaction with the procedure which has been followed by the Court, and the opportunity which has been given to him to make any statement or develop any facts which, in his judgment, should be considered in disposing of the instant matter.
Judicial knowledge will be taken of all records and proceedings in either the State or Federal courts which relate to the petitioner's claim for relief. In addition, said records have been admitted in evidence and are marked as Exhibits:
Petitioner's Exhibit No. 1- Record of proceedings, 533 May Sessions 1931, Court of Quarter Sessions, Allegheny County, Pennsylvania.
Petitioner's Exhibit No. 2- Record of Proceedings, 1906 January Term 1952, Court of Common Pleas of Allegheny County, Pennsylvania. An alleged similar proceeding.
Petitioner's Exhibit No. 3- Record of Proceedings in the Supreme Court of Pennsylvania, Docket No. 1725 Miscellaneous. An alleged similar proceeding. (It has been stipulated and agreed by the petitioner and the District Attorney of Allegheny County, Pennsylvania, that the photostatic copies which have been admitted in evidence as Petitioner's Exhibit No. 3 are true and correct ...