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COMMONWEALTH EX REL. RIDENOUR v. MCHUGH. (07/21/55)

July 21, 1955

COMMONWEALTH EX REL. RIDENOUR, APPELLANT
v.
MCHUGH.



Appeal, No. 70, April T., 1955, from judgment of Court of Common Pleas of Indiana County, March T., 1955, No. 169, in case of Commonwealth of Pennsylvania ex rel. William Ridenour v. John McHugh, Keeper of the Cambria County Prison, and Pennsylvania Board of Parole. Judgment affirmed.

COUNSEL

Kaminsky & Kelly, for relator.

J. Murray Buterbaugh, District Attorney, for respondents.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Wright

[ 179 Pa. Super. Page 70]

OPINION BY WRIGHT, J.

William Ridenour petitioned the Court of Common Pleas of Indiana County for a writ of habeas corpus. He was at the time confined in the Cambria County Prison under detainer of the Pennsylvania Board of Parole, but is now an inmate of the Western Penitentiary. He has appealed from the dismissal of his petition and states that the question before us is as follows: "Has the petitioner been deprived of due process of law by the sentencing Judge, and by the denial of counsel on his previous petition for Writ of Habeas Corpus?"

The record discloses that, on August 3, 1942, an information was made against appellant charging robbery by assault, and aggravated assault and battery.

[ 179 Pa. Super. Page 71]

Appellant was arrested the next day and taken to the office of the Justice of the Peace where he acknowledged his guilt. The case was docketed in the Court of Quarter Sessions to No. 59 June Sessions, 1942, but no formal disposition was made thereof until April 5, 1943*fn1 On that date appellant was brought before the court on the charge in question, as well as two additional charges, one of larceny of an automobile and one of burglary, docketed respectively to Nos. 35 and 36 March Sessions 1943. Appellant entered pleas of guilty to all three charges. On bill 59 June 1952, he was sentenced to the Western Penitentiary for not less than five nor more than ten years. On bill 36 March 1943, he was sentenced for not less than two and a half nor more than five years, to run consecutively. On bill 35 March 1943, he was sentenced for not less than one nor more than two years, to run concurrently.

On April 11, 1950, appellant filed with the Supreme Court of Pennsylvania (No. 1670 Miscellaneous Docket) a petition for writ of habeas corpus wherein he alleged that the sentence of April 5, 1943, at No. 59 June Sessions 1942, was void. His position was that he had actually entered a plea of guilty on August 24, 1942, and "that the court lost its power to impose sentence at the expiration of the June 1942 Term". He also raised the question that he had not been represented by counsel at any time. The Supreme Court

[ 179 Pa. Super. Page 72]

    granted a rule to show cause why a writ should not issue. Answers were filed by the district attorney and the warden of the penitentiary, and a "rebuttal" by the appellant. Thereafter the record was remitted to the Court of Quarter Sessions of Indiana County*fn2 On June 28, 1950, there was a hearing before the lower court, at which time appellant and the clerk of the court both testified. Thereafter the lower court filed with the Supreme Court a report in which it was found as a fact that "the formal plea of guilt to the indictment at No. 59 June Sessions, 1942, was entered in open court on April 5, 1943, at which time defendant-relator signed the written statement endorsed on the bill of indictment". On August 19, 1950, appellant presented to the Supreme Court a brief wherein he set forth, inter alia, the additional averment that he had requested the lower court to appoint counsel for him in the ...


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