he must actually speak for himself or remain mute in order that a valid plea may be entered. * * *'
The entry of the plea by counsel violated none of relator's constitutional rights.
5. The failure to take testimony
Relator's argument on this point is two-pronged: first, that to convict without evidence is a denial of due process; second, that the imposition of sentence without hearing the nature and circumstances of the crime is also a denial of due process. I cannot agree with either proposition.
First. Where an accused asserts his innocence, and where the record is totally devoid of evidence of guilt, a denial of due process may result. Thompson v. City of Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654, 80 A.L.R.2d 1355 (1960). The situation is different, however, when the conviction is based upon a plea. A guilty plea is an admission of all the facts well pleaded in the indictment; Hoover v. United States, 268 F.2d 787 (C.A. 10, 1959); and no proof is necessary beyond the plea of guilty. See Hood v. United States, 152 F.2d 431 (C.A. 8, 1946). The conviction rests, not upon evidence, but upon the plea. In Johnston v. United States, 254 F.2d 239, at page 241 (C.A. 8, 1958), the court said:
'* * * By such a plea, the accused admits the allegations of the facts charged in the information or indictment, and if the plea of guilty is properly entered, the accused cannot later be heard to contend that there was no evidence offered. * * *'
Cf. United States v. Miller, 254 F.2d 523 (C.A. 2, 1958).
The situation is no different when the plea is entered by counsel on defendant's behalf. Commonwealth ex rel. Sprader v. Burke, 74 F.Supp. 850, 851 (E.D.Pa., 1947).
Second. The imposition of sentence, so long as it does not exceed the legal maximum, is solely within the discretion of the trial judge. Commonwealth ex rel. Sprader v. Burke, supra. It is equally within the discretion of the sentencing judge to hear or to refuse to hear evidence after a guilty plea and before sentence. In Italiano v. United States, 35 F.2d 863, at page 864 (C.A. 7, 1929), the court said:
'* * * Upon appellant's plea of guilty, the extent of the penalty imposed was wholly within the discretion of the court, subject only to the statutory limitations. * * * The plea of guilty dispensed with the necessity of any proof; but the court, in its discretion, could inquire into the nature of the offense, and hear proof or statements of mitigating circumstances. This being wholly for the court's information, it is difficult to see how error could intervene in what the court heard or refused to hear thereon. * * *'
Where a trial judge declines to hear evidence before imposing sentence, the situation is analogous to the refusal to require or consider a presentence report. Both are designed to furnish whatever additional information the sentencing judge may feel he requires to shape the sentence. If the judge, in his discretion, decides that no additional information is needed, such decision does not collide with the Constitution. In United States ex rel. Boone v. Fay, 231 F.Supp. 387 (S.D.N.Y., 1964), Judge Weinfeld said, at page 391:
'The defendant next seeks to vacate the judgment of conviction because the Trial Judge imposed sentence without the benefit of a presentence report, which is authorized under section 931 of the Criminal Code. However, the section does not require such a report; it is to be provided only 'when directed by the Court.' Thus, the matter rests in the Court's discretion. The failure of the Court to exercise its discretion and to require a report did not trespass upon any federally protected constitutional right of the petitioner. * * *'
Cf. Williams v. New York, 337 U.S. 241 (1949); United States ex rel. Murphy v. Denno, 234 F.Supp. 692 (S.D.N.Y., 1964).
I hold that here the failure to take testimony before the imposition of sentence was not violative of relator's rights under the federal Constitution.
The court appointed Richard M. Rosenbleeth, Esquire, to represent the relator. He prepared and filed an amended petition; he submitted memoranda of law, and attended and participated in two hearings. All this he did at the sacrifice of his own time and without compensation. I express the gratitude of the court to Mr. Rosenbleeth.
And now, January 19, 1965, it is ordered that the petition for writ of habeas corpus be and it hereby is denied.