Staley, Chief Judge, and McLaughlin and Forman, Circuit Judges.
This is an appeal by Arthur Jackson from an order of the United States District Court for the Eastern District of Pennsylvania, denying, after an evidentiary hearing, the appellant's petition for a writ of habeas corpus.
The appellant pleaded guilty to a charge of aggravated robbery on July 25, 1962, and was sentenced by the Court of Oyer and Terminer in Philadelphia to a term of ten to twenty years. At the time of sentencing, the judge had before him an "Extract of Criminal Record" prepared by the Police Department of Philadelphia which listed not only a prior criminal conviction of the appellant, but also his juvenile record and occasions when he had been taken before a magistrate and discharged. The appellant attacks the sentence as unconstitutionally imposed on the following grounds: The sentencing judge considered his prior juvenile record in violation of the Act of June 2, 1933, P.L. 1433, §§ 1 and 19; 11 Pa.Stat.Ann. § 261 and in addition did so although the appellant was without counsel in the juvenile proceedings. He considered his discharges by magistrates although they are without probative value as prior culpable acts. He misread the record as though some of the juvenile offenses and magistrates' discharges were adult criminal convictions, so that the sentence was based upon materially incorrect assumptions. His counsel's effort to correct the error was inadequate to the extent that the appellant was denied effective assistance of counsel.
The District Court properly rejected the appellant's first claim that he was denied the benefit of the Pennsylvania Act of June 2, 1933, providing that the disposition of a child in a juvenile court shall not be admissible as evidence against him in a proceeding in any other court. The Pennsylvania Supreme Court decided well prior to the date of appellant's conviction that the statute bars the use of juvenile records only as evidence in a criminal proceeding to determine innocence or guilt, but does not bar its use for the purpose of determining sentence.*fn1
Nothing in the Constitution prevents a sentencing judge from considering a defendant's juvenile record qua a juvenile record. A judge is permitted, if not obliged,*fn2 to give weight to a wide variety of factors, including many not officially documented, which reflect upon the rehabilitative needs of the defendant and the insulative needs of society.*fn3 In particular, a juvenile record may, as in this case, convey instructive evidence of the defendant's probable response to remedial efforts. So long as a judge considers such a record in its proper perspective -- i.e., as a reference to non-criminal proceedings where no counsel was required and where the purpose was not penal but curative*fn4 -- there can be no ground for complaint. Thus the absence of counsel at juvenile proceedings is a factor which limits the use of the juvenile record, but does not forbid it.
We agree that discharges before a magistrate should have no place in determining sentence. The Supreme Court of Pennsylvania has stated that the purpose of a hearing before a magistrate is "to prevent a person from being imprisoned or required to enter bail for a crime which was never committed, or for a crime with which there is no evidence of his connection."*fn5 A discharge therefore implies the presence of one or both of these factors. However, relief on this basis would depend upon a showing by the defendant not only that the discharges were considered as evidence of culpable activity, but that as such, they were determinants in setting the length of the sentence. Insofar as such a showing has been made in this case, it is subsumed in the consideration of the next issue.
The record supports the appellant's contention that his sentence was imposed by reference to materially inaccurate facts. At page 30 of the trial record the following exchange appears:
"The Court: He has three robberies by strongarm.
"[Appellant's Counsel]: For six years he has not been convicted of a crime.
"The Court: You mean he has not been caught."
And at page 31, the judge in passing sentence stated:
"On Arthur Jackson, because he had the longer record and had several strong arm jobs, I will sentence ...