Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
A Pennsylvania statute authorizes an enhanced penalty upon second conviction of certain crimes. The question here is whether the manner in which a Pennsylvania trial court utilized that statute to impose upon the relator, Collins, double the normal maximum penalty for the crime with which he was charged violated the Fourteenth Amendment requirement of procedural due process of law.
The question arises in a habeas corpus proceeding initiated in a United States District Court by Collins to obtain release from state custody. It is his contention that a portion of his sentence greater than the time remaining to be served is invalid and, accordingly, that he is entitled to be released forthwith from custody. By a long and tortuous course of litigation over a seven-year period in state and federal courts,*fn1 relator has so obviously exhausted any remedy available to him through procedure originating in any state court as to clear the way for the present original petition in a District Court of the United States.
The District Court granted Collins a plenary hearing. The complete trial record of his conviction and sentence, and the records of the subsequent collateral proceedings were put in evidence. In addition, oral testimony was received. From all this the essential facts emerge without substantial dispute.
In 1931 Collins was indicted in Pittsburgh for felonious breaking and entering a store in the daytime and stealing $29.30 from the cash register. Under the Pennsylvania statute upon which the indictment was founded the burglary charged was punishable by imprisonment for a maximum term of ten years. See Section 2 of the Act of April 22, 1863, P.L. 531, as amended by the Act of March 13, 1901, P.L. 49. Collins pleaded guilty and on May 25, 1931 was present in court for sentence. The court sentenced him to imprisonment for a term of from five to twenty years.As recorded, the sentence recited that it was imposed "pursuant to the Act of Assembly approved April 29, 1929". This was a reference to the Pennsylvania Habitual Criminal Act which permitted a Pennsylvania court within its discretion to impose upon an offender for a second conviction of certain crimes, including burglary, within a five year period, a penalty not to exceed twice the maximum penalty normally prescribed for that crime.*fn2 But neither at sentencing nor at any earlier time, nor in the indictment itself, was it indicated to the accused in any way that the court proposed to deal or was dealing with him as a second offender. It was a fact, however, that Collins had been convicted of burglary in Connecticut after a plea of nolo contendere within the five years next preceding the Pennsylvania offense. Collins served serveral years in prison before he learned that he had been dealt with and sentenced as a second offender.
Collins was paroled in 1940. He violated his parole by a theft for which he was convicted in Wisconsin. Thereafter, in 1946, he was returned to Pennsylvania as a convicted parole violator to serve the remainder of his twenty year term. He has now served sixteen years of the twenty year maximum sentence imposed in 1931.
By petition for habeas corpus, first in the state courts and now in the federal courts, Collins has asserted that so much of the sentence as was in excess of the ten year maximum provided by the statute under which he was indicted was imposed without due process of law and, therefore, affords no proper basis for his present detention. In disposing of this contention the state courts and the District Court have taken the position that though the trial court's procedure in arriving at the twenty year sentence may have been deficient and improper, the error was inconsequential because Collins now admits that he was in fact a second offender and as such subject to the enhanced punishment which was imposed upon him. See Com. ex rel. Collins v. Ashe, 159 Pa.Super. 553, 49 A.2d 265, 266; U.S. ex rel. Collins v. Ashe, D.C., 80 F.Supp. 914, 916; U.S. ex rel. Collins v. Claudy, D.C., 106 F.Supp. 367, 373. We understand this reasoning to be merely that Collins could lawfully have been sentenced to a twenty year term by proper procedure originally, not that he could now be resentenced lawfully. For if the duly imposed portion of his sentence has expired, any resentence now would be the clearest double jeopardy.
Undoubtedly the procedure which attended the sentence was improper under Pennsylvania law. Section 5 of the Habitual Criminal Act, 19 P.S. § 925, provides that "A person need not be formally indicted and convicted as a previous offender in order to be sentenced under this act." For present reenactment see 18 Pa.Stat.Ann. § 5108(e). But it also is the law of Pennsylvania that, absent such notice in the indictment, "The defendant has a right to know at the time of his sentence that it has been increased because of his prior conviction * * *. [Moreover, the] facts on which the doubling of the term of a sentence depends should not rest in the undisclosed knowledge of the court but should appear plainly of record". See Commonwealth ex rel. Arnold v. Ashe, 1945, 156 Pa.Super. 451, 456, 40 A.2d 875, the relevancy of which to this conviction was expressly recognized by this court on relator's first appeal. U.S. ex rel. Collins v. Ashe, 3 Cir., 175 F.2d 555, 556. Moreover, records and decisions introduced into this record show that even while the present petitioner has been attempting to obtain his release, the quoted doctrine has enabled other prisoners to make successful collateral attacks in Pennsylvania courts upon enhanced sentences similarly imposed upon them without proper procedure. Commonwealth ex rel. Furpack v. Claudy, decided by the Pennsylvania Supreme Court February 1, 1951, not reported; Commonwealth ex rel. O'Leary v. Claudy, decided by the Court of Common Pleas for Allegheny County, February 7, 1952, not reported. Yet, the Pennsylvania courts which have considered petitioner's plight have taken the position that the error in this case was harmless and, therefore, nothing need be done beyond a suggestion that in the future "for the sole purpose of achieving procedural uniformity," there should be some formal determination of prior conviction. See 159 Pa.Super. 553, 556, 49 A.2d 265, 266.
Can Pennsylvania, consistent with the Fourteenth Amendment, thus minimize the total omission of notice and hearing, the normal prerequisite of judicial determination of essential facts? We have no doubt that Pennsylvania can waive that which is merely a violation of state law or locally prescribed procedure.But is more than that involved here?
In determining whether the procedure by which a state has determined the guilt of an accused person squares with the requirements of due process the Supreme Court has repeatedly taken the position that the question whether the accused was in fact innocent or guilty of the crime charged is irrelevant and not to be considered. Thus, in the line of cases from Brown v. State of Mississippi, 1936, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682, through Watts v. State of Indiana, 1949, 338 U.S. 49, 69 S. Ct. 1347, 93 L. Ed. 1801, the Court has held that the barbarity of extorted confession may not be part of the procedure which leads to a conviction of crime regardless of whether the matter confessed is true or false and regardless of any and all other strongly persuasive evidence of guilt in the record. It is the teaching of all these cases that "the aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false." See Lisenba v. California, 1941, 314 U.S. 219, 236, 62 S. Ct. 280, 290, 86 L. Ed. 166.
Closer to the present situation in the nature of the problem involved is Cole v. State of Arkansas, 1948, 333 U.S. 196, 68 S. Ct. 514, 92 L. Ed. 644. There the highest court of a state had sustained a conviction on the ground that the offense proved constituted a violation, not of the statutory provision upon which the indictment was grounded, but of a companion section of the same statute. The Supreme Court found it quite clear that this procedure offended the requirements of the Fourteenth Amendment. No question of guilt in fact could override the conception that "conviction upon a charge not made would be sheer denial of due process." See De Jonge v. State of Oregon, 1937, 299 U.S. 353, 362, 57 S. Ct. 255, 259, 81 L. Ed. 278.Even in civil cases where a personal judgment has been entered without according the defendant reasonable notice and opportunity to be heard, the state may not dilute the requirements of due process by requiring the defendant thereafter to show as a condition precedent to the vacating of the judgment that he has a substantial defense. Coe v. Armour Fertilizer Works, 1915, 237 U.S. 413, 35 S. Ct. 625, 59 L. Ed. 1027.Cf. Griffin v. Griffin, 1946, 327 U.S. 220, 66 S. Ct. 556, 90 L. Ed. 635. Thus, regardless of the merits, the establishment of the essential issues in a civil or criminal case must be after reasonable notice and opportunity to be heard if the procedure is to meet the standards of due process.
Certainly the foregoing doctrine protected the present relator in all that preceded the formal adjudication of his guilt of burglary. This case requires further analysis only because the courts have treated the determination of the facts of recidivism and the exercise of the judicial function in deciding upon any enhanced penalty authorized for such cases as something distinct from the principal determination of guilt or innocence. Moore v. State of Missouri, 1895, 159 U.S. 673, 16 S. Ct. 179, 40 L. Ed. 301; McDonald v. Com. of Massachusetts, 1901, 180 U.S. 311, 21 S. Ct. 389, 45 L. Ed. 542; Graham v. State of West Virginia, 1912, 224 U.S. 616, 32 S. Ct. 583, 56 L. Ed. 917. It is reasoned that at this stage of the case the court is determining the extent of culpability after guilt of a crime has been established. Accordingly, the tendency has been to move from the stringent requirements of due process before conviction toward the greater latitude normally allowed in sentencing in cases like Williams v. People of State of New York, 1949, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337, where, in the absence of any question of possible liability to enhanced penalty, the sentencing judge is permitted to fix punishment, up to a statutory maximum already authorized by the verdict, in the light of any pertinent data and reports without informing the convicted person what data is being considered or granting him any hearing thereon. At the same time, it is established that even after conviction the due process clause imposes some significant restraint to assure the essential fairness of the procedure by which a judge shall exercise discretion in fixing punishment within permissible limits. Townsend v. Burke, 1948, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690. But cf. Gryger v. Burke, 1948, 334 U.S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683. Such restraint is the more imperative in the present situation where the challenged sentence cannot lawfully be imposed upon the basis of the finding of guilty as charged in the indictment without more. Here there remains after conviction an issue to be tried with facts to be proved in order to elevate the offense to the aggravated class defined and punished by the Habitual Criminal Act.
The nature and significance of this additional inquiry is emphasized by procedures which have been adopted in various jurisdictions as appropriate for its prosecution. The early English statute of 6 and 7 William IV, c. 3, enabled the inclusion of a charge of aggravation by reason of a previous conviction in an indictment for the ultimate consideration of the trial jury, but forbade "the jury to inquire concerning such previous conviction until after they shall have inquired concerning such subsequent felony and shall have found such person guilty of the same * * *", and to the same end the statute provided further that "Whenever in any indictment such previous conviction shall be stated, the reading of such statement to the jury as part of the indictment shall be deferred until after such finding as aforesaid". Some states, West Virginia and Pennsylvania among them, have made specific provision for a separate trial of the issue of previous conviction in certain cases. See Graham v. West Virginia, supra; 18 Pa.Stat.Ann. § 5108(d). In addition, we think that in both Townsend v. Burke, supra, and Gryger v. Burke, supra, the Supreme Court, by implication at least, has presupposed that under ...