June 15, 1961
COMMONWEALTH EX REL. LEWIS, APPELLANT,
Appeal, No. 52, April T., 1961, from order of Court of Common Pleas of Allegheny County, Oct. T., 1960, No. 1003, in case of Commonwealth ex rel. Frank Lewis v. Lawrence P. Keenan, Superintendent. Order reversed.
H. Blumenfield, with him Albert Martin, for appellant.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 195 Pa. Super. Page 190]
OPINION BY WOODSIDE, J.
This is an appeal from the refusal of the Court of Common Pleas of Allegheny County to grant a writ of habeas corpus to a prisoner, who had been sentenced to a term of 5 to 10 years on a charge of violating the Drug Act of July 11, 1917, P.L. 758, as amended.
The prisoner was sentenced on May 2, 1956, under § 12 of the above act which, as amended by the Act of June 19, 1953, P.L. 290, provided for a penalty in the following language:*fn1 "... upon conviction thereof, shall be sentenced as follows: for a first offense, to pay a fine not exceeding two thousand dollars ($2000) and to undergo imprisonment of not less than two (2) years and not exceeding five (5) years; for a second offense ... to pay a fine not exceeding five thousand dollars ($5000) and to undergo imprisonment of not less than five (5) and not exceeding ten (10) years, ..."
On September 5, 1956, approximately four months after he was sentenced, the prisoner filed his petition for a writ of habeas corpus, contending he should not have been sentenced as a second offender. The legality of the sentence is properly raised by a writ of habeas corpus. Commonwealth ex rel. Dermendzin v. Myers, 397 Pa. 607, 609, 156 A.2d 804 (1959).The petitioner was brought into court on September 19, 1956, and the case then marked "Hearing continued until further order of court." The record does not show the reason for the continuance, but we are advised that an appeal had been taken in a similar case, and the court was awaiting the disposition of that appeal. However, the appeal in that case was subsequently withdrawn, and nothing further happened in the case now before us until another petition for a writ of habeas corpus raising
[ 195 Pa. Super. Page 191]
the same question was filed to a new number on July 25, 1960. On November 3, 1960, the court refused to grant the writ, and this appeal followed.
There is no record of the hearing before the court at the time of sentence. The court stenographer who took the notes of testimony and the assistant district attorney who prosecuted the case at the time of the sentence are both dead. The petitioner charges that he was not given an opportunity to deny that he was a second offender. The judge who sentenced the prisoner wrote the opinion for the court below in the habeas corpus case. He said that the court record showed that the defendant had a prior relevant conviction, and suggested that the court had the right to take judicial notice of its own record and did so. He further stated that the petitioner was advised before sentence that the Act of 1953 made it mandatory upon the court to sentence him as a second offender. (See Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959), which holds that the sentence for a second offender need not be for a minimum of 5 years, but that the maximum may not be less than 5 years nor more than 10 years.)
We need not decide whether under the statute as it existed at that time, it was necessary to indict the petitioner as a second offender. See Commonwealth ex rel. Dermendzin v. Myers, supra, 397 Pa. 607, 610, 156 A.2d 804 (1959); the Act of July 19, 1957, P.L. 1013, amending $12 of the Drug Act, supra, and adding (d) thereto, 35 P.S. § 865; Commonwealth v. Payne, 242 Pa. 394, 89 A. 559 (1913); Commonwealth ex rel. Blattenberger v. Ashe, 133 Pa. Superior Ct. 509, 3 A.2d 287 (1938).
Whether or not the convict is a recidivist subject to an increased statutory penalty is a question of fact upon which the convict has the right to demand a hearing and to demand reasonable time to prepare for such a hearing. Commonwealth ex rel. Dermendzin v.
[ 195 Pa. Super. Page 192]
the prisoner before it for resentencing in accordance with law. Commonwealth ex rel. Dermendzin v. Myers, supra. However, under the circumstances of this case, we think that the writ should be granted, and the prisoner discharged. An effort was made by the prisoner to raise the question of the illegality of his sentence nearly five years ago. He has now served an imprisonment of over five years - in excess of the minimum sentence imposed, and in excess of the maximum which could have been imposed upon him as a first offender. It was not a delay by the prisoner in bringing the action which caused the court record to be missing. The prisoner was entitled to a speedier disposition of the serious question his petition raised. Under the circumstances, we think it would be unjust to remand the case.
WRIGHT, J., concurs in the result.
MONTGOMERY, J., would remand for resentencing.
Order reversed, with direction to the court below to grant the writ discharging the prisoner forthwith.