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COMMONWEALTH EX REL. BORDNER v. RUSSELL (06/24/66)

decided: June 24, 1966.

COMMONWEALTH EX REL. BORDNER, APPELLANT,
v.
RUSSELL



Appeal from order of Superior Court, Oct. T., 1964, No. 350, affirming order of Court of Common Pleas of Berks County, April T., 1964, No. 7, in case of Commonwealth ex rel. Frank Bordner v. Harry E. Russell, Superintendent.

COUNSEL

Frank Bordner, appellant, in propria persona.

Ralph J. Althouse, Jr., Assistant District Attorney, and W. Richard Eshelman, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 422 Pa. Page 367]

In 1959, appellant entered pleas of guilty to indictments charging burglary and larceny and was sentenced to a term of imprisonment of 2 to 4 years. At no time was he represented by counsel.

On March 9, 1965, he filed a petition for a writ of habeas corpus in the Court of Common Pleas of Berks County alleging, inter alia, that he had been deprived of his constitutional right to the assistance of counsel in violation of the decision of the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963), and the decisions of this Court in Commonwealth ex rel. Johnson v. Maroney, 416 Pa. 451, 206 A.2d 322 (1965); Commonwealth ex rel. Remeriez v. Maroney, 415 Pa. 534, 204 A.2d 450 (1964); Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 204 A.2d 446 (1964); and Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964).*fn1

The petition was dismissed after a consideration of the merits of all the contentions advanced by appellant except that relating to lack of counsel. The court refused to entertain the latter contention on the ground that appellant, by voluntarily withdrawing a previous petition for habeas corpus predicated on a like contention,

[ 422 Pa. Page 368]

    had waived the right to further collateral consideration of the issue.

On appeal, the Superior Court affirmed.*fn2 We granted allocatur for the sole purpose of considering whether appellant's withdrawal of a prior petition for habeas corpus alleging a constitutional deprivation of counsel precluded reliance on the same ground in a subsequent collateral attack on the validity of his conviction.

The facts are not in dispute. In early 1964, appellant filed a petition for habeas corpus in the court below raising the issue of deprivation of counsel at the plea proceedings. The petition was dismissed on the ground that appellant failed to allege facts which would entitle him to relief. For reasons not here relevant, the Superior Court reversed and remanded the case with directions that a hearing be held to determine whether appellant's constitutional right to the assistance of counsel had been waived.*fn3

On remand, counsel was appointed to represent appellant and a hearing scheduled for November 10, 1964. At the hearing appellant was informed that he was being considered for parole and that the trial judge intended to recommend parole be granted. He was further informed that were he to prevail, and the writ to issue, he would in all likelihood be retried and incarcerated pending retrial. Moreover, he was ...


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