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UNITED STATES EX REL. KERN v. MARONEY

November 2, 1967

UNITED STATES of America ex rel. James E. KERN
v.
James F. MARONEY, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania



The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 The relator, James E. Kern, has petitioned in forma pauperis for a writ of habeas corpus. In Fayette County, Pennsylvania, he was indicted for murder jointly with Robert E. Dillinger, - both pleaded guilty generally. Following the hearing to fix the degree of guilt, the court on April 17, 1964 found Kern guilty of murder in the first degree and Dillinger guilty of murder in the second degree. On the same day, Kern was sentenced to life imprisonment. No appeal was taken.

 On May 18, 1966, Kern filed a petition in the state court under the Pennsylvania Post Conviction Hearing Act, alleging that he was "eligible for relief under this act because my conviction resulted from * * * [1] the introduction into evidence of a statement obtained in the absence of counsel at a time when representation is constitutionally required", and from "[2] the infringement of my privilege against self-incrimination under either federal or state law." He further alleged that he "was sentenced on a confession obtained when I should have had the aid of counsel."

 On June 7, 1966, the sentencing judge by opinion and order dismissed the petition without a hearing. On July 27, 1966, Kern filed another petition in the state court under the Post Conviction Hearing Act requesting (1) that the order denying his petition be vacated, (2) leave to amend the petition, and (3) the right to appear in person. He requested the appointment of a lawyer "on appeal, if necessary * * *."

 In addition to the allegations contained in the first petition, Kern alleged in the second petition that his conviction also resulted from: "[3] the introduction of evidence obtained pursuant to an unlawful arrest; [4] the introduction of a coerced confession into evidence; [5] the denial of my constitutional right to representation by competent counsel; [6] a plea of guilty unlawfully induced; [7] the unconstitutional use by the state of perjured testimony; [8] the abridgement of a right guaranteed by the constitution or laws of this state or the constitution or laws of the United States, including a right that was not recognized as existing at the time of the trial if the constitution requires retrospective application of that right."

 As "facts" he alleges mostly conclusions, but in support of his allegation of involuntary plea he does assert that "the Court did not question me on the understanding of my plea of guilty nor the voluntariness of it." But see, Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 342, 223 A.2d 699, 702 (1966).

 The sentencing judge denied relator the right to amend this first petition on the ground that the additional allegations contained in the amendment were considered in his opinion denying the writ. This reason was accepted by the Supreme Court in affirming the Order of the lower court. Commonwealth ex rel. Kern v. Maroney, 423 Pa. 369, 223 A.2d 706 (1966).

 As stated in Commonwealth ex rel. Kerekes v. Maroney, supra, 423 Pa. at p. 342, 223 A.2d at p. 702 (1966):

 
"Before dismissing a petition which alleges the invalidity of a guilty plea, the habeas court must assure itself, by examining the record or by holding a hearing, that the decision to so plead was, at the time it was given, the defendant's own voluntary and intelligent choice, not merely the choice of his counsel."

 In Kercheval v. United States, 274 U.S. 220, 223, 47 S. Ct. 582, 583, 71 L. Ed. 1009 (1927), it was stated:

 
"Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and ...

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