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COMMONWEALTH EX REL. MILLER v. MARONEY. (09/28/55)

September 28, 1955

COMMONWEALTH EX REL. MILLER, APPELLANT,
v.
MARONEY.



Appeal, No. 91, April T., 1955, from order of Court of Common Pleas of Venango County, August T., 1954, No. 35, in case of Commonwealth of Pennsylvania ex rel. Robert W. Miller v. Captain James Francis Maroney, Warden, Western State Penitentiary. Order affirmed.

COUNSEL

Robert W. Miller, appellant, in propria persona.

No one appeared or submitted a brief for appellee.

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

Author: Wright

[ 179 Pa. Super. Page 306]

OPINION BY WRIGHT, J.

Robert W. Miller, an inmate of the Western State Penitentiary, petitioned the Court of Common Pleas of Venango County for a writ of habeas corpus. The said court entered into a full hearing at which Miller was represented by counsel and testified in person. The testimony was transcribed and the court thereafter filed an opinion and order dismissing the petition. This appeal followed. At appellant's request we have examined the brief submitted by his attorney to the lower court from which we ascertain that the two questions raised are: (1) that appellant was illegally sentenced

[ 179 Pa. Super. Page 307]

    on two counts of a single indictment, the first count charging entering a building with intent to commit a felony and the second count charging robbery with an offensive weapon; and (2) that appellant was denied due process of law by reason of the failure of the court to provide counsel at the time of his plea of guilty.

The record discloses that on the evening of March 3, 1938, there was a hold-up at a filling station in the Borough of Rouseville, as a result of which a sum of money was taken from the attendant. Shortly thereafter appellant was apprehended in a taproom by two police officers. In his own words he "attempted to escape", and assaulted the two officers in the ensuing struggle. He was thereafter taken to the Oil City police station where he was questioned for approximately an hour. Having executed a confession,*fn1 appellant was then taken before a magistrate for a hearing, following which he was committed to jail. On March 15, 1938, appellant was brought before the court whereupon he waived indictment and entered a plea of guilty to indictment No. 28 April Sessions 1938, containing a first count of entering a building with intent to commit a felony and a second count of robbery armed with an offensive weapon; and to indictment No. 30 April Sessions 1938, containing two counts of aggravated assault and battery, a third count of pointing a firearm, and a fourth count of carrying a concealed weapon without a permit. He was sentenced on the first count in No. 28 April Sessions 1938, to a term of four to eight years to be computed from March 4, 1938.On the second count he was sentenced to a term of seven and one-half to fifteen years, to be computed from the expiration

[ 179 Pa. Super. Page 308]

    of the sentence on the first count. In No. 30 April Sessions 1938, he was sentenced to a term of one and one-half to three years on each count of aggravated assault and battery, these sentences to be consecutive to each other and to the sentences imposed on No. 28 April Term 1938. Sentence was suspended on the third and fourth counts of No. 30 April Term 1938.*fn2 On October 25, 1946, appellant's minimum term was commuted from fourteen and one-half years to eight years and eight months. On December 27, 1946, he was released on parole. On February 21, 1952, as the result of guilty pleas in Venango County to indictments Nos. 15 and 16 April Sessions 1952, charging respectively larceny of an automobile and burglary, appellant was sentenced as follows: on bill 15 from two to four years to be computed from February 16, 1952, and on bill 16 from ...


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