Appeal, No. 17, Jan. T., 1960, from order of Court of Common Pleas of Blair County, Jan. T., 1958, No. 130, in case of Commonwealth of Pennsylvania ex rel. Charles N. Dermendzin v. David N. Myers, Warden. Record remanded with directions. Habeas corpus. Order entered discharging rule to show cause why writ should not be allowed, opinion by KLEPSER, P.J. Relator appealed.
Charles N. Dermendzin, appellant, in propria persona.
Frank B. Warfel, Assistant District Attorney, with him Park H. Loose, District Attorney, for appellee.
Before Jones, C.j., Bell, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
This appeal from an order of the court below, dismissing the relator's petition for a writ of habeas corpus, questions whether the relator was duly sentenced for the crime whereof he was convicted. A writ of habeas corpus is the appropriate means for testing the legality of a sentence imposed upon a convict. See Halderman's Case, 53 Pa. Superior Ct. 554; Commonwealth ex rel. Flory v. Ashe, 132 Pa. Superior Ct. 405, 1 A.2d 685.
On March 27, 1954, Charles N. Dermendzin, the relator, was convicted of voluntary manslaughter in the Court of Oyer and Terminer of Blair County. The maximum prison sentence imposable in this State for a conviction of such offense is 12 years. Act of June 24, 1939, P.L. 872, § 703 (18 PS § 4703). However, Dermendzin was sentenced by the court under the provisions of the Habitual Criminal Act of June 24, 1939, P.L. 872, § 1108 (18 PS § 5108), to an enlarged term of from 12 to 24 years in the Western State Penitentiary. Several years later, as relator, he filed a petition in the Court of Common Pleas of Blair County for a writ of habeas corpus alleging that he had been sentenced as a second offender without due process of law. The court issued a rule upon the warden of the State penitentiary, the place of restraint, calling upon him to show cause why a writ should not issue as prayed for. Answer was filed and a hearing had at which the relator, though not personally present, was represented by counsel. The court ultimately discharged the rule and denied the relator a writ of habeas corpus in an order which the relator appealed to the Superior Court. The jurisdiction of the appeal being in this court, the Superior Court duly certified it to us: Act of May 25, 1951, P.L. 415, § 7 (12 PS § 1907).
The Habitual Criminal Act provides as follows: "(a) Whoever after having been convicted within or without this Commonwealth of the crime ... of ... voluntary manslaughter ... [or] burglary ... may, upon conviction of any of such crimes for a second offense committed within five (5) years after the first offense ... be sentenced to imprisonment for a term, the maximum of which shall not be more than twice the longest term prescribed upon a first conviction of the crime in question. ... (e) A person need not be formally indicted and convicted as a previous offender in order to be sentenced under this section."
The relator had been priorly convicted in the Court of Oyer and Terminer of Blair County on March 6, 1953, on indictments charging burglary, larceny and receiving stolen goods, for offenses committed on December 12, 1952, which was within five years of the commission of the homicide for which he was convicted, as above stated, of voluntary manslaughter on March 27, 1954. The relator, in his petition for a writ of habeas corpus, admits the fact of his prior conviction of burglary, etc., on March 6, 1953. He insists, however, that he was not legally sentenced as a second offender because he had not been, prior to or at the time of his sentencing on the voluntary manslaughter conviction, notified of his alleged right under the Habitual Criminal Act to a hearing on the fact of the previous conviction.
Although by the terms of the Habitual Criminal Act no formal indictment or conviction of the fact of previous offense is necessary before sentence can be imposed thereunder on a second offender, it has been said that "The defendant has a right to know at the time of his sentence that it has been increased because of his prior conviction ...". Commonwealth ex rel. Arnold v. Ashe, ...