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COMMONWEALTH EX REL. JOHNSON v. BURKE (11/11/53)

November 11, 1953

COMMONWEALTH EX REL. JOHNSON
v.
BURKE



COUNSEL

Amos Johnson, in pro. per.

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

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

Author: Wright

[ 174 Pa. Super. Page 120]

WRIGHT, Judge.

Appellant was arrested on January 23, 1947, and was held for action by the grand jury on charges of burglary from an automobile, larceny and receiving stolen goods. On February 7, 1947, he pleaded guilty inter alia to bill of indictment No. 59 February Sessions, 1947, charging him with said offenses, and was sentenced to the Pennsylvania Industrial School at Camp Hill. The original transfer record erroneously set forth the maximum term as twenty years. Since the charge in question was burglary from an automobile, which carries a maximum sentence of five years, Act of 1939, P.L. 872, § 903, 18 P.S. § 4903, the transfer record was subsequently corrected.

Appellant was paroled from Camp Hill on December 8, 1948. On January 22, 1952, he was arrested and charged with the unlawful use of narcotics, to which charge he pleaded guilty. On February 14, 1952, he was sentenced to six months in the County Prison. At the expiration of said sentence, on or about August 1, 1952, appellant being then over 21 years of age, he was transferred to the Eastern State Penitentiary as a parole violator. There he is serving the balance of the five year term on the burglary conviction. The present commitment record correctly sets forth the discharge date as September 17, 1955.

Appellant presented a petition for a writ of habeas corpus to the Court of Common Pleas No. 6 of Philadelphia County on April 21, 1953. An answer was filed by the District Attorney and a hearing was held

[ 174 Pa. Super. Page 121]

    on May 8, 1953. Appellant was present at the hearing and was represented by counsel. His attorney made an extended statement to the lower court, setting forth the facts as to the arrest, the charge, the erroneous statement of the maximum term, its subsequent correction, the parole and re-commitment. He ended this recital by stating that appellant's real grievance had thus been satisfied. The only other question was an allegation on the part of appellant that he had, in fact, been arrested on September 29, 1946, and held prisoner from that time. Here again, appellant's attorney fairly outlined the situation to the court. He stated that he had investigated the truth of the allegation and could find no evidence that appellant had been arrested before January 23, 1947. The lower court then dismissed the petition and this appeal followed.

In addition to the allegation that he is now entitled to discharge on the record of his commitment, appellant here added the allegation that he 'was not represented by counsel at trial'. The facts developed at the hearing before the lower court adequately dispose of any question as to the propriety of appellant's present imprisonment. There remains only the question as to whether appellant, as a matter of due process, was entitled to counsel at the time of his plea of guilty.

It is well settled in this Commonwealth that to invalidate a plea of guilty in non-capital cases by reason of denial of due process or law arising from a failure to provide a prisoner with counsel, the prisoner must establish that an ingredient of unfairness actively operated in process that resulted in his confinement. Com. ex rel. Popovich v. Claudy, 170 Pa. Super. 482, 87 ...


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