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COMMONWEALTH v. GIOVENGO (12/09/58)

December 9, 1958

COMMONWEALTH
v.
GIOVENGO, APPELLANT.



Appeal, No. 265, Oct. T., 1958, from judgment of Court of Oyer and Terminer of Franklin County, April T., 1955, Nos. 2 and 3, in case of Commonwealth of Pennsylvania v. John Giovengo. Judgment affirmed.

COUNSEL

Marjorie Hanson Matson, for appellant.

George C. Eppinger, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).

Author: Ervin

[ 188 Pa. Super. Page 222]

OPINION BY ERVIN, J.

Appellant was arrested on March 27, 1955 in Franklin County and charged with two acts of burglary and larceny. On April 11, 1955 he waived presentment and entered pleas of guilty. Sentence was deferred and the appellant was turned over to the Allegheny County authorities to answer for similar crimes in that county. At the time he entered his pleas of guilty in Franklin County he was represented by William C. Hazlett, Esquire, now deceased. Following the entry of guilty pleas in Allegheny County the appellant was sentenced to the Western State Penitentiary for a term of not less than 5 nor more than 20 years, which sentence he is still serving. Detainers were lodged with the penitentiary to insure appellant's return to Franklin County at the termination of the Allegheny County sentence. On July 27, 1956 appellant filed by mail a petition for a rule to show cause why he should not either be sentenced on the Franklin County indictments or the prosecutions dismissed, alleging failure of the court to sentence him within a reasonable time after the entry of his plea of guilty. On August 30, 1956 the rule was discharged. In February 1957 appellant applied to the Supreme Court of Pennsylvania for a writ of mandamus requesting the Court to order dismissal of the Franklin County charges by reason of the delay in sentencing. The Supreme Court entered an order denying the petition as not stating a case for the issuance of a writ of mandamus: No. 2113 Misc. Docket, Western District. On September 26, 1957 appellant filed a second petition in the Franklin

[ 188 Pa. Super. Page 223]

County court requesting that the indictments be dismissed. On November 7, 1957 an order was filed dismissing the petition. He attempted to appeal from said order to the Superior Court but his petition to appeal in forma pauperis was denied, without payment of a filing fee. The Supreme Court denied an allocatur: see No. 2147 Misc. Docket, Western District. An application for a writ of certiorari was made to the Supreme Court of the United States but denied on March 10, 1958: see No. 416 Misc. 1957. On March 14, 1958 another petition was presented by the appellant to the Franklin County court, on which date an order was made fixing March 21, 1958 as the time for sentence. On March 21, 1958 the appellant was brought before the Franklin County court and two sentences were imposed on the separate burglary and larceny indictments of not less than two nor more than four years in the Western State Penitentiary, to run concurrently and to begin at the expiration of the Allegheny County sentences which appellant was then serving. The appellant appealed to this Court.

Appellant contends that the delay of two years, eleven months and ten days in sentencing after the entry of his pleas of guilty deprives him of his right to a speedy trial and due process of law as guaranteed by art. I, § 9 of the Pennsylvania Constitution and the Fourteenth Amendment to the United States Constitution. In Com. ex rel. Wilhelm v. Morgan, 278 Pa. 395, 397, 123 A. 337, our Supreme Court said: "The right to temporarily defer sentence, while the court seeks information or the defendant applies for pardon or for other sufficient reason, is universally recognized. The practice of an indefinite suspension of sentence has also long been in vogue in this and some other states, although in a majority of jurisdictions such right is denied, on the ground that an indefinite suspension

[ 188 Pa. Super. Page 224]

    of sentence amounts to a pardon, which only the executive can grant: 8 R.C.L. 248. Where such practice is recognized the right to later impose sentence remains with the trial court, and the time of its exercise is a matter for judicial discretion; manifestly, however, it would be an abuse thereof to impose sentence after a great delay. Hence, under any view of the law, sentence must be imposed, if ever, within a reasonable time after conviction." In the same opinion the Court also said: "In our opinion every suspension of sentence since the effective date of the Act of 1911 is subject to its provisions, without regard to the form of the order. In any event, sentence can be suspended only for a reasonable time, which, in conformity with the statute, we hold cannot extend beyond the maximum term of imprisonment, excluding therefrom time spent on motion for new trial, appeal, etc."

In Com. v. Fox, 69 Pa. Superior Ct. 456, the defendant, on December 6, 1916, plead guilty to the charge of keeping a bawdyhouse in violation of § 43 of the Act of 1860, P.L. 382. Pursuant to the provisions of the 1911 act the court suspended sentence and placed the defendant on probation for a year. On January 14, 1918 the defendant was brought in for a violation of the terms of her probation and was on that date sentenced to nine months in the Philadelphia County prison. In that case we said, at pages 458, 459: "The courts have always had power to hold convicts for sentence as long as may be deemed necessary and advantageous to the ends of justice and in the meantime they may receive information in addition to that disclosed on the trial with respect to what should be an appropriate ...


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