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UNITED STATES EX REL. LAMBORN v. RUNDLE

February 10, 1966

UNITED STATES of America ex rel. Carl W. LAMBORN
v.
A. T. RUNDLE, Superintendent, State Correctional Institution, Philadelphia, Pennsylvania



The opinion of the court was delivered by: VAN DUSEN

 This is relator's second petition for a writ of habeas corpus. *fn1" Prior to filing this second petition, the relator had filed a petition for habeas corpus in the state court and appealed from its denial to the Pennsylvania appellate courts *fn2" and through the appropriate Federal Courts. *fn3"

 The relator's request at the end of his handwritten petition "prays this Honorable Court grant an evidentiary hearing." *fn4"

 The petition, and the answer filed by the respondent and the District Attorney of Lancaster County, Pa., show that the relator is now confined in the State Correctional Institution at Philadelphia pending the outcome of the ruling on this petition. *fn5"

 The answers and certified copies of the record show that relator was sentenced to the Eastern State Penitentiary on June 2, 1961, by the Court of Quarter Sessions of Lancaster County on an indictment based on Complaint No. 164, March Term 1961, to a term of not less than two nor more than four years, the commitment date being April 10, 1961. On the same day, relator was sentenced on an indictment based on Complaint No. 165, March Term 1961, for a term of not less than two nor more than four years, such sentence to be consecutive to, and not concurrent with, the above sentence. Both indictments charge larceny of an automobile.

 The relator on June 2, 1961, in the presence of his court-appointed counsel, *fn6" pled guilty and was sentenced on that date.

 In this petition, the relator raises five contentions, four of which have not previously been raised in the Federal Courts. *fn7" The contentions asserted by relator are:

 
A. Relator claims that the court had no jurisdiction to sentence him due to the fact that no preliminary hearing before the Alderman was held.
 
Judge Wissler, in his opinion of March 30, 1965, states:
 
B. The second point raised by the relator is absence of counsel at the time he should have had a preliminary hearing, which relator contends was at "a critical stage" of the proceedings. The preliminary hearing is not a "critical stage" under the facts presented by this record. A critical stage is a point where rights of the defendant must be preserved or irretrievably lost. White v. State of Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963); Hamilton v. State of Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961). Also, as demonstrated above, relator waived such preliminary hearing *fn9" and, at the time he entered his guilty plea and at the time he was sentenced on June 2, 1961, he was represented by Theodore S. Danforth, Esq.
 
C. Relator next claims that the form of the indictment is constitutionally deficient in that "there is no crime * * * defined [by the Pennsylvania legislature] as Larceny of Motor Vehicle." *fn10" Relator has cited no authority to sustain his position and the court has found none. Also, mere formal defects, such as might be involved in this contention, not affecting the real merits or the jurisdiction of the court, are waived by a failure to raise the question before pleading to the merits, Commonwealth ex rel. Koffel v. Myers, 184 Pa.Super. 270, 133 A.2d 570 (1957). See, also, United States ex rel. Hazen v. Maroney, D.C., 217 F. Supp. 328 (1963).
 
D. Relator's next point is that the Commonwealth failed to establish the corpus delicti. Such proof is not required where defendant enters a plea of guilty. *fn11"
 
E. Relator's last point is the claim that his counsel, at the time he entered his guilty plea, did not represent him effectively and such alleged deprivation of effective assistance of counsel was in violation of the ...

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