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COMMONWEALTH EX REL. HERMAN v. CLAUDY (08/30/54)

: August 30, 1954.

COMMONWEALTH EX REL. HERMAN
v.
CLAUDY



COUNSEL

Marjorie Hanson Matson, Pittsburgh, for appellant.

John F. Boney, Asst. Dist. Atty., Wray G. Zelt, Jr., Dist. Atty., Washington, for appellee.

Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Woodside

[ 176 Pa. Super. Page 388]

WOODSIDE, Judge.

The only question presented to us by the appellant in this appeal from the refusal of the lower court to grant a writ of habeas corpus is 'Under the circumstances

[ 176 Pa. Super. Page 389]

    of this case, did the failure of the Washington County Court to appoint counsel for Defendant deprive him of due process of Law?'

The matter was before the lower court on petition and answer. The court's own record of the sentence and what transpired there was also properly before it, Com. ex rel. Comer v. Claudy, 1954, 174 Pa. Super. 494, 496, 102 A.2d 227. Since the lower court dismissed the petition without a hearing, the facts alleged in the petition, if properly and sufficiently averred and unless contradicted by the record itself, must be accepted as true. The conclusions contained in it need not be.

It appears that on October 26, 1945 the relator pleaded guilty before President Judge Gibson in Washington County to 8 offenses of burglary, 12 of larceny, 8 of forgery, and 2 of false pretense, all alleged to have been committed between March 21, 1945 and August 25, 1945. He was sentenced to 2 1/2 years to 5 years on each of the offenses, some to run consecutively, but most concurrently. His total sentence was 17 1/2 years to 35 years in the Western Penitentiary to be computed from September 8, 1945, the day of his arrest.

The law to be applied in this case was set forth by this court in Com. ex rel. Reggie v. Burke, 1952, 170 Pa. Super. 647, 649, 90 A.2d 385, 386, as follows:

'The failure to provide counsel when none is requested or to advise a defendant that counsel will be assigned him upon request does not constitute, ipso facto, a denial of due process or other violation of a defendant's constitutional rights in non-capital cases. (Cases cited.) * * *

'Both federal and state courts have said that, to invalidate a plea of guilty in non-capital cases by reason of denial of due process arising from failure to provide a ...


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