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COMMONWEALTH EX REL. SWIECZKOWSKI v. BURKE (07/14/53)

July 14, 1953

COMMONWEALTH EX REL. SWIECZKOWSKI
v.
BURKE



COUNSEL

Henry M. Irwin and Donahue, Irwin & Gest, Philadelphia, for appellant.

Martin Vinikoor, Samuel Dash, Assts. Dist. Atty., Michael von Moschzisker, First Asst. Dist. Atty., and Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.

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

Author: Ross

[ 173 Pa. Super. Page 364]

ROSS, Judge.

On December 26, 1939 the relator, Walter Swieczkowski, pleaded guilty in the Court of Quarter Sessions for Philadelphia County to five bills of indictment, Nos. 579 to 583, inclusive, December Sessions, 1939. The several indictments charged relator with assault and battery with intent to ravish and attempted rape upon the persons of two minor females; with taking a female child under the age of sixteen years for the purpose of sexual intercourse, and inveigling and enticing the same for said purpose; and with sodomy upon each of the two children.

The relator was sentenced to serve the following terms in New Eastern State Penitentiary: On Bill No. 579 (assault and battery with intent to ravish and attempted rape), 2 1/2 to 5 years, to be computed from December 18, 1939; on Bill No. 582 (sodomy) 5 to 10 years, to commence after sentence on Bill No. 579; and on Bill No. 583 (sodomy), 5 to 10 years, to commence after sentence on Bill No. 582.

Relator served his minimum term, 12 1/2 years, and made application to the Pennsylvania Board of Parole

[ 173 Pa. Super. Page 365]

    for parole. The application was refused on May 7, 1952. Thereafter, on September 12, 1952, the instant petition for a writ of habeas corpus was filed in the Court of Common Pleas No. 2 of Philadelphia County.

In the petition the relator sought release from custody on the ground that he 'should not have been permitted to plead guilty without an offer of the advice of counsel' because he was 'inexperienced with the intricacies of criminal procedure'. He complains that the record 'shows no attempt on the part of the court to make him understand the consequences of his plea'. The relator sees himself prejudiced by the absence of counsel at sentencing because such counsel might have 'induced the court to accept a plea to a lesser included offense by showing the court that the persons had accosted the defendant first, that at no time had the defendant forced any one into submission'.

On September 23, 1952 a rule was granted on the District Attorney and a hearing was held on that rule on October 10, 1952, at which time the relator testified that when he pleaded guilty he 'didn't realize the seriousness of it all'; that he was 'advised by the police of Philadelphia to go in and plead guilty and by doing so that I would get a lighter sentence'; and that 'If counsel was appointed to me at that time I think that I could have gotten a lighter sentence'. Relator did not deny his guilt. He also admitted a record of two previous convictions for sex offenses -- 'assault on ...


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