Boles, 368 U.S. at 450-451, 82 S. Ct. at 503. There a defendant pleaded guilty to forging a $ 35. check, an offense which carried a penalty of from two to ten years imprisonment. Thereafter, the Habitual Offenders Act of West Virginia was invoked against him because of two previous felony convictions. He was sentenced to life imprisonment as an habitual offender and the sentence was sustained by the Supreme Court.
What remains for us since the law is so well established, is in a different chronological setting. Notice here was not given prior to defendant's plea of guilty. As we have seen, it was not required. The District Attorney carefully complied with the requirements laid down by our Court of Appeals in United States ex rel. Collins v. Claudy, 204 F.2d 624 (3d Cir. 1953). Relator had three months notice that he would be resentenced as an habitual offender. His claim is that after his successful attack in the Supreme Court of Pennsylvania on the original sentence to life imprisonment it was too late for the Commonwealth, even by giving him full and meticulous notice in advance of the resentencing, to invoke § 1108 (the Habitual Offenders Act) and seek to double the maximum term, something which it had not sought to do eleven years earlier at the time of the original sentence. This, he contends, is because the only lawful and valid punishment that could have been imposed on his resentencing was one based upon the record as it existed at the time of the original sentence.
The practical reason for the present proceeding is that if the sentence is reduced from a maximum term of forty-years to a maximum term of twenty years, the relator, who has now served more than the minimum term of ten years, will be eligible to seek parole. Thompson v. Cavell, 158 F.Supp. 19 (W.D.Pa.1957).
Relator's reliance on United States ex rel. Collins v. Claudy, supra, is misplaced. Judge Hastie there said that the defendant, who had been sentenced under the Act of April 29, 1929, P.L. 854, 19 P.S. 921 (now § 1108 of The Penal Code) for a term double the maximum of ten years, but without prior notice that the Habitual Criminal Act would be invoked against him, 'could lawfully have been sentenced to a twenty year term by proper procedure originally, not that he could now be resentenced lawfully. For if the duly imposed portion of his sentence has expired, any resentence now would be the clearest double jeopardy.' (204 F.2d p. 626) In the Collins case, at the time it was determined that due process had been violated, the defendant had already served sixteen years of the doubled maximum amounting to twenty years, so that the maximum penalty of ten years permitted for his crime -- the Habitual Criminal Act aside -- had expired. Hence Judge Hastie held that there could be no resentencing at that time. In the present case the defendant has served only eleven years of a maximum twenty-year sentence for second degree murder -- the Habitual Offenders Act aside. The principle is fundamental and was stated as far back as Murphy v. Commonwealth of Massachusetts, 177 U.S. 155, 20 S. Ct. 639, 44 L. Ed. 711 (1899), that it is only when the original sentence was already fully satisfied that resentencing violated the defendant's constitutional rights.
Accepting, as we must, the binding principle that notice of the invocation of the Habitual Offenders Act was not required to be given prior to the trial or plea of guilty, but only prior to the imposition of sentence, it follows that the defendant's right to due process was not infringed because after he had successfully attacked the original sentence he was duly resentenced after adequate notice that the Habitual Offenders Act would be invoked. All this was at a time when the maximum period for which he could have been sentenced originally had not yet expired. The defendant may not escape the enlarged penalty authorized by 1108 because the prosecutor and the court, after his plea of guilty, deemed a life sentence mandatory and did not invoke the Habitual Offenders Act, which unquestionably would have authorized a doubling of the sentence at that time. After the invalid life sentence was set aside and the Supreme Court of Pennsylvania remitted the record to the Court below for the imposition of a lawful and valid sentence, the lower Court had full authority to treat the matter de novo. To this case is fully and justly applicable the language of Bozza v. United States, 330 U.S. 160, 166, 167, 67 S. Ct. 645, 648, 91 L. Ed. 818 (1946): 'The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.'
AND NOW, April 27, 1962, the petition of Claude F. Swingle for a writ of habeas corpus is denied.