ROSENBERG, District Judge.
Charles Fox asserted in a letter sent to me, and which is made a part of the record, that he is unable to put his complaint in proper writing, and that it is a meritorious one.
He is presently confined in the Allegheny County Jail for either or both a parole violation and commission of a crime subsequent to that for which he was originally incarcerated. Although the petitioner has already on several occasions presented petitions for writs of habeas corpus to this District Court and these have been denied, and although I, myself, heretofore denied his petition on the same complaint as presently made, I, nevertheless, felt it incumbent upon me to give the petitioner an opportunity to present his matter orally in order that I might satisfactorily understand and determine any proper questions which he should happen to raise. However, I do not by this granting of a hearing on a letter-complaint, such as this, intend that it be considered as any precedent whatsoever.
Accordingly, I fixed a hearing before me for March 18th, 1966 and allowed him to present his case as fully and completely as he desired. During the hearing of his case, the petitioner had copies of the records, made during his sentencing on the convictions here involved.
His complaint in substance is that reference to a particular number and term of an indictment in the Courts of Allegheny County, Pennsylvania, on which he received a sentence was erroneous and that great prejudice resulted when someone struck out the word "concurrently" and added the word "consecutively". Based upon the presentation thus made, I indicated at the close of the hearing that I would grant a rule upon the Commonwealth of Pennsylvania to show cause and have counsel appointed.
Prior to taking such action, I, nevertheless, first examined the record, after which communication was had with the Assistant District Attorney in charge of the records, and I received in turn telephonic communication from sentencing Judge Leo H. McKay of the Court of Common Pleas of Mercer County, sitting specially in Allegheny County.
At my request Judge McKay sent me a letter setting forth the circumstances as they actually occurred. This letter is dated March 28th, 1966, and is made a part of this record. I now accept the written statement of Judge McKay as evidence of the factual circumstances as they relate to the complaint as here made. 28 U.S.C.A. § 2245;
United States ex rel. Hawryliak v. Maroney, 235 F. Supp. 135 (D.C.Pa., 1964).
The facts are these. Fox had been apprehended and indicted on a series of cases relating to stealing of automobiles by a gang. They were all represented by counsel. All submitted to a trial without a jury before Judge McKay. Fox was a defendant or one of the co-defendants in more than thirty of these indictments, and pleaded guilty to numerous of the indictments for larceny and burglary. Among these were No. 276 May Sessions 1959 for larceny and No. 115 October Sessions 1959 for burglary. He also was found guilty on a number of indictments by Judge McKay.
It was expressed openly in court at the time of sentencing
by the sentencing judge that Fox receive a sentence of from two to five years on two of the counts to which he pleaded guilty, which sentences were to run consecutively, and that he receive identical sentences for each of the convictions which Judge McKay had tried and found him guilty. These last, however, it was stated, were to run concurrently with the two sentences which were to run consecutively. On certain other of the misdemeanors for which Fox had pleaded or been found guilty, Judge McKay suspended sentences.
According to Judge McKay's notes, at the trial, in referring to the number of one of the larceny cases, to which Fox had pleaded guilty, Judge McKay inadvertently said No. "279" May Sessions 1959, when in fact, there was no such case at that number against Fox. Judge McKay had apparently not heard the true number when it was read. By mistake, then, he made that case, erroneously referred to at No. "279", the key one orally at the time of sentencing from two to five years. The second sentence of from two to five years at No. 115 October Sessions 1959 was the correct reference and that case was "to begin to run at the termination of the sentence at No. 279 May Sessions 1959."
Judge McKay is of the opinion that the sentences were stamped by the clerk and signed by Judge McKay late that afternoon without discovering the erroneous No. "279". They were, however not filed at that time because it was after closing time of the office of the Clerk of Court. On the next morning the clerk, who has since become deceased, called the matter to the Judge's attention and he undertook to correct the error. In the Judge's own words, he did it in this way:
"I made No. 276 May Sessions the key sentence; instructed the clerk to draw a line through the words 'to run concurrently with the sentence at No. 115 October session', which he had written on No. 276, told him to change No. '279' in the sentence at No. 115 October and correct it to read No. 276, so that the sentence at No. 115 October Sessions then read, 'to begin to run at the termination of the sentence at No. 276 May Sessions, 1959', and told him then to file all of the papers as so corrected. The whole intent of the written senence, and the record as corrected by my order and in my presence by the clerk before filing, thus, was to sentence him to 2 to 5 at No. 276 May, 1959, and 2 to 5 at No. 115 October, 1959, the latter to begin at the termination of the former and a total of 5 [sic] to 10 for the both. All of this was done in chambers the following morning, in the absence of the defendant, of course, but in complete understanding by him at the time of sentence in open court that he was getting just exactly what he got - 2 to 5 on one, 2 to 5 on another, to be served consecutively, a total of 5 to 10 [sic]."
Two questions are now before me. The first one is: Did any inadvertency relating to either the number "279" or the words "consecutively" or "concurrently" as used orally at the time of sentencing, and as set forth by the correction on the back of the indictment, have any prejudicial effect upon the petitioner so as to deprive him of any constitutional rights?
In Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499 (1940), the trial judge, at the time of sentencing, inadvertently stated that sentences were to run concurrently when his intent was to make them run consecutively. It was held that the judge's statement that they were to run concurrently was a slip of the tongue and not his intention and that there was no merit in the complaint that the trial judge did not have the power after trial to correct the slip of the tongue. The change did not constitute "cruel and inhuman punishment" so as to preclude enforcement of the corrected sentence. The court stated (at page 500):
"* * * we are not required to decide whether a court having once pronounced sentence in accordance with its true intent and purpose can change it later in such a manner as to increase the penalty, whether before or after service of the sentence begins. The question is whether such a change can be made, if done promptly, in order to correct a sentence inadvertently pronounced and make it speak the true intention of the court. * * * [page 503] It was not the purpose of the [Fifth] amendment to compel courts to give effect to their inattentive and nondeliberative acts, so long at least as their actual execution has not been initiated and the prisoner has not been harmed by them other than in hearing the pronouncement made and promptly corrected."