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March 27, 1961

UNITED STATES of America ex rel. John GIOVENGO, Petitioner,
James F. MARONEY, Superintendent State Correctional Institution, Pittsburgh 33, Pennsylvania, Respondent

The opinion of the court was delivered by: MCILVAINE

This case comes before this Court on a petition for writ of habeas corpus raising the question of whether the right to a speedy trial, including final disposition and sentence, is protected by the due process clause of the Fourteenth Amendment.

The sentence which petitioner is presently serving arises out of offenses to which he entered a guilty plea on April 11, 1955, in Franklin County, Pennsylvania. The offenses charged were burglary and larceny. After entry of the plea the Court deferred sentence and turned the petitioner over to Allegheny County authorities, who likewise had charges against this petitioner. Upon his return to Allegheny County, petitioner entered guilty pleas to several offenses and was sentenced to the Western Penitentiary for a term of five to twenty years.

 In February 1957, petitioner 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 denied the petition as not stating a case for issuance of a writ of mandamus: No. 2113 Misc.Docket (Western District).

 On September 26, 1957, petitioner filed a second petition in the lower court, this time requesting that the indictments be dismissed because of the failure to impose sentence. This petition was dismissed November 7, 1957. Petitioner attempted to appeal from said order, but the Pennsylvania Superior Court denied his petition to appeal in forma pauperis: No. 289 Misc.Docket (Pittsburgh District). The Pennsylvania Supreme Court denied allocatur; No. 2147 Misc.Docket (Western District). Application for a writ of certiorari was made to the United States Supreme Court but denied March 10, 1958. Giovengo v. Commonwealth of Pennsylvania, 356 U.S. 904, 78 S. Ct. 566, 2 L. Ed. 2d 582.

 On March 18, 1958, petitioner mailed to this Court a petition which was later filed at No. 2153, seeking dismissal of the charges against him in Franklin County on the basis of the failure of that court to impose sentence within a reasonable time. The following day petitioner was removed from the Penitentiary and taken to Franklin County. On March 21, 1958, petitioner was sentenced to a term of two to four years in a state correctional institution on each of two indictments, said sentences to run concurrently and to take effect at the expiration of the Allegheny County sentences.

 Petitioner then appealed to the Superior Court which sustained the imposition of the sentence despite the fact that it was imposed two years, eleven months, and ten days after the entry of the guilty plea: Commonwealth v. Giovengo, 188 Pa.Super. 220, 146 A.2d 629. Judge Wright dissented, holding that petitioner had been deprived of his constitutional rights by the failure to impose sentence within a reasonable time.

 The Pennsylvania Supreme Court refused allocatur March 23, 1959, Mr. Justice Musmanno dissenting: No. 250-A Misc.Docket No. 11. A petition for reconsideration was denied May 7, 1959.

 The United States Supreme Court denied certiorari October 12, 1959, 361 U.S. 843, 80 S. Ct. 94, 4 L. Ed. 2d 81.

 Thereafter on April 19, 1960, petitioner was paroled on his Allegheny County sentences and commenced serving his Franklin County sentence. He is thus in a position to raise the constitutional question in this Court, having exhausted his state remedies and being in confinement under what he asserts is an invalid sentence. His earlier petition, filed at No. 2153, had been dismissed by Judge Miller by reason of the fact that petitioner was not then in custody on the sentence whose validity he sought to challenge.

 The Commonwealth of Pennsylvania was notified of the filing of this application for a writ of habeas corpus. Copies of his application were served upon the Superintendent in charge of the institution in which he was confined, the Attorney General of the Commonwealth of Pennsylvania, and the District Attorney of Franklin County, the county in which petitioner was sentenced.

 This case presents the issue whether following the entry of a guilty plea in a state court does the deferment of a sentence for almost three years despite repeated requests for final disposition of the case deprive the petitioner of due process of law as guaranteed by the Fourteenth Amendment of the Constitution of the United States.

 It would appear that under the Sixth Amendment to the United States Constitution the imposition of sentence is a part of trial as indicated in Pollard v. United States, 1956, 352 U.S. 354, 77 S. Ct. 481, 1 L. Ed. 2d 393. However, there is some question whether some of the rights protected under the Sixth Amendment are incorporated within the rights protected under the Fourteenth Amendment. We feel that before a Court could find that a state prisoner's rights to a speedy trial have been violated and, hence, a violation of the Fourteenth Amendment of the Constitution, we would have to find that he has requested a trial, and that a speedy trial has been denied, and that this has been prejudicial to his rights. The question thus before this Court is whether the rights of this petitioner were prejudiced. It appears that when he was seeking commutation of his sentence from the Allegheny County Court, which sentence was for a term of five to twenty years, one of the reasons that the District Attorney asserted in opposing commutation ...

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