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COMMONWEALTH v. MINER (09/12/61)

September 12, 1961

COMMONWEALTH
v.
MINER, APPELLANT.



Appeal, No. 245, Oct. T., 1961, from order of Court of Quarter Sessions of Franklin County, Oct. T., 1941, No. 9, in case of Commonwealth of Pennsylvania v. Donald J. Miner. Order affirmed.

COUNSEL

Donald J. Miner, appellant, in propria persona.

Jay L. Benedict, Jr., District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Rhodes

[ 196 Pa. Super. Page 20]

OPINION BY RHODES, P.J.

The defendant filed, in the Court of Quarter Sessions of Franklin County, a petition captioned "Petition for Writ of Error" and dated February 17, 1961. The court below, although stating that the appeal time had long since expired, discussed the merits of defendant's contentions and dismissed the petition.

All petitions for Writ of Error are now taken by means of an appeal. Act of May 9, 1889, P.L. 158, § 1, 12 PS § 1131. However, if defendant's Writ of Error is directed against the original sentence, as an appeal therefrom almost twenty years from the date of sentence, it was not taken within the prescribed time.*fn1 Treating his Writ of Error as either a writ of error

[ 196 Pa. Super. Page 21]

    coram nobis or as a petition for a writ of habeas corpus, his appeal from the refusal of the petition may be timely. Therefore, in the hope that by discussing the merits we shall forestall future petitions by the same defendant raising the same questions, we shall dispose of his various contentions. Com. ex. rel. Yeschenko v. Keenan, 179 Pa. Superior Ct. 145, 149, 115 A.2d 386.

The record indicates that on May 26, 1941, the defendant, then eighteen years of age, was arrested in Chambersburg, Franklin County, for the theft of an automobile. On May 31, 1941, defendant entered a plea of guilty and waived his right to have the bill of indictment presented to a grand jury. Defendant was then sentenced and committed to the Pennsylvania Industrial School at Camp Hill under an indeterminate sentence. Defendant now seeks to set aside the sentence,*fn2 and assigns as his reasons: (1) That he had not been indicted by a grand jury for the crime aforesaid; (2) that he was not represented by counsel; (3) that he was not advised by anyone that he had a right to be represented; (4) that he did not waive his right to counsel; and (5) that he did not understand the nature of the proceedings against him, and that he was not advised of his right to trial by jury.

Defendant now asserts - nearly twenty years after the event - that he was tried without counsel or the assistance of counsel. No excuse is given for the delay; hence on this record he is clearly guilty of laches. Com. ex rel. ...


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