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COMMONWEALTH EX REL. WANKO v. RUSSELL. (12/14/61)

December 14, 1961

COMMONWEALTH EX REL. WANKO, APPELLANT,
v.
RUSSELL.



Appeal, No. 196, April T., 1961, from order of Court of Common Pleas of Cambria County, Sept. T., 1960, No. 701, in case of Commonwealth ex rel. Stephen Wanko v. Harry E. Russell, Superintendent. Order affirmed.

COUNSEL

E. F. Walker, for appellant.

W. Louis Coppersmith, Assistant District Attorney, with him Ferdinand F. Bionaz, District Attorney, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Montgomery

[ 196 Pa. Super. Page 566]

OPINION BY MONTGOMERY, J.

This is an appeal from an order dismissing a petition for habeas corpus. The petition alleges that the constitutional rights of the appellant have been violated

[ 196 Pa. Super. Page 567]

    by the refusal of the lower court to issue a writ on the grounds that the appellant was not represented by counsel when he entered a plea of guilty to a charge of burglary on January 31, 1949. At that time appellant was eighteen years old.

There is nothing in the record to indicate that the appellant requested the assistance of counsel, and the testimony at the habeas corpus hearing indicates that the usual habit and custom of the Cambria County District Attorney's Office at that time, in case where there was no defense counsel, was to advise the defendant of his rights, inquire whether or not he wanted an attorney to represent him, and to locate one willing to do so if such was the defendant's desire. However, because of the passage of eleven years between the time of the plea and the time of the habeas corpus hearing, the Assistant District Attorney involved could not recall if this procedure had been followed in this specific case.

Having pleaded guilty to the charge of burglary, after the circumstances of the offense were presented by the prosecutor, there was a discussion by the court that the appellant might be sentenced to an indeterminate term at White Hill, where upon the appellant made threatening and abusive remarks to the judges in open court. The sentence actually imposed was for commitment to the Western Penitentiary for a term of from ten to twenty years and a fine of $10,000.

On January 20, 1959, the appellant was paroled from the penitentiary. Subsequently, on March 22, 1960, he was convicted of the crime of aggravated assault and battery and sentenced by the court on March 28, 1960, to a term of one to two years. Before commencing serving this latter term, he was returned to the Western Penitentiary as a ...


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