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COMMONWEALTH EX REL. CLINGER v. RUSSELL (09/16/65)

decided: September 16, 1965.

COMMONWEALTH EX REL. CLINGER, APPELLANT,
v.
RUSSELL



Appeal from order of Court of Common Pleas of Lancaster County, Habeas Corpus Docket No. 5, page 52, in case of Commonwealth ex rel. Albert L. Clinger v. Harry E. Russell, Superintendent.

COUNSEL

Albert L. Clinger, appellant, in propria persona.

Theodore A. Parker, Assistant District Attorney, and Wilson Bucher, District Attorney, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Hoffman, J. Ervin, P. J., would affirm the order of the court below because the appellant, in writing, waived the appointment of counsel and when asked in open court, affirmed such waiver. Wright and Watkins, JJ., would affirm upon the opinion of the court below.

Author: Hoffman

[ 206 Pa. Super. Page 437]

Appellant, Albert L. Clinger, without the assistance of counsel, pleaded guilty to a charge of larceny on November 22, 1963. He was sentenced to a term of not less than one and one-half nor more than three years in the Eastern State Penitentiary. Appellant then filed a petition for writ of habeas corpus. Pursuant to that petition, a rule to show cause was granted for argument, after which the court rendered an opinion discharging the rule. From the discharge of that rule appellant has taken this appeal.

The record shows that before appellant was sentenced by the court, he signed the following prepared statement:

"I, the defendant within named, after being advised of my Constitutional right to be represented by counsel, do voluntarily waive the right to counsel, and do

[ 206 Pa. Super. Page 438]

    certify that I have not requested counsel and that counsel has not been refused me, and do waive the finding of a True Bill by the Grand Jury and do hereby enter my plea of guilty to the within charge. I further certify that I understand the nature of the charge and the maximum penalty which may be imposed."

The extent of the court's inquiry into the circumstances under which the above plea was tendered consisted of the following:

"The Court: Mr. Clinger, you have entered your plea of guilty to the charge of larceny and without the benefit of counsel. Before the court imposes sentence on your plea you are advised by this court that you have the constitutional right to be represented by counsel. Is it still ...


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