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COMMONWEALTH EX REL. LA TEMPA v. BURKE (07/13/54)

July 13, 1954

COMMONWEALTH EX REL. LA TEMPA
v.
BURKE



COUNSEL

John La Tempa, in pro. per.

William J. Kearney, First Asst. Dist. Atty., Carlon M. O'Malley, Dist. Atty., Scranton, for appellee.

Before Rhodes, P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.

Author: Rhodes

[ 175 Pa. Super. Page 514]

RHODES, President Judge.

This is an appeal from an order of the Court of Common Pleas of Lackawanna County discharging a rule to show cause why a writ of habeas corpus should not be granted, refusing the writ, and remanding relator to the Eastern State Penitentiary.

Relator was indicted in the Court of Quarter Sessions of Lackawanna County upon charges of attempted extortion, section 806 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4806, and blackmail, section 801 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4801, at No. 87, February Sessions, 1952. He was indicted in the same court at No. 163, February Sessions, 1952, upon a charge of malicious mischief by explosives, section 917 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4917. On February 4, 1952, he was brought before the court on the first indictment, and he entered a plea of guilty thereto. Although he was not represented by counsel at that time, the court advised him of his right to counsel, of his right to trial by jury, and of the nature of the charges against him. Relator admitted that he knew his rights, and said he understood his admission of the charges in the indictment. Sentence was deferred until February 8, 1952, when relator was brought before the court for sentence. By that time the jury panel for the term had been dismissed. Prior to sentence relator stated that he wished to withdraw his plea of guilty. The court denied the application and sentenced relator upon the attempted extortion count of the indictment to the Eastern State Penitentiary

[ 175 Pa. Super. Page 515]

    for a term of not less than five years nor more than ten years. No sentence was imposed on the count charging blackmail.

On the same day relator entered a plea of guilty on the indictment at No. 163, February Sessions, 1952. The court again clearly explained to relator the nature of the charge against him, his right to trial by jury, and his right to be represented by counsel. Relator indicated that he fully understood these matters and stated that he still wished to enter a plea of guilty on this indictment charging malicious mischief by explosives. He was then sentenced to the Eastern State Penitentiary for a term of not less than five years nor more than ten years; the court directed that such sentence be served concurrently with the sentence imposed at No. 87, February Sessions, 1952.

On May 29, 1953, relator filed a petition for writ of habeas corpus in the Court of Common Pleas of Lackawanna County. Answers were filed by the District Attorney of Lackawanna County and the Warden of the Eastern State Penitentiary. A rule to show cause was issued. On July 15, 1953, a hearing was held at which relator was present. Counsel was appointed for him.

Although not distinctly set forth in his petition, relator's complaints may be summarized as follows: (1) That he was denied due process by reason of the fact he was not represented by counsel in the trial court; (2) that the sentence imposed on bill No. 87 was excessive; and (3) that the trial judge erred in refusing to permit him to withdraw his plea of guilty on bill No. 87.

At the habeas corpus hearing, notwithstanding the repeated requests of his counsel and the hearing judge relator refused to testify in his own behalf. He presented ...


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