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January 18, 1968

UNITED STATES of America ex rel. David WINTZ
Alfred T. RUNDLE, Superintendent

The opinion of the court was delivered by: BODY

 BODY, District Judge.

 Relator David Wintz pleaded guilty to the crimes of bastardy, sodomy, and incestuous adultery and was convicted by the state trial court on February 18, 1963. The trial court, after concluding that Wintz would constitute a threat of bodily harm to the public if he were at large, determined that Wintz should be sentenced under 19 P.S. § 1166, commonly known as the Barr-Walker Act. Sentence on the bastardy bill was suspended. On the incestuous adultery and sodomy bills, the court imposed concurrent indeterminate sentences of one day to life, as provided by the Barr-Walker Act.

 Wintz did not appeal the trial court's decision; he explains that neither his court-appointed counsel nor the court had ever advised him of his right to appeal. He did, however, seek collateral relief under the Pennsylvania Post-Conviction Hearing Act, and he was again represented by appointed counsel. The relator claimed that his sentence under the Barr-Walker Act was illegal because he had never been granted a hearing on whether he would constitute a threat of bodily harm to the public if he were at large; and because he had not been afforded an opportunity to confront and cross-examine the witnesses against him.

 The state court, recognizing the authority of United States ex rel. Gerchman v. Maroney, 355 F.2d 302 (3d Cir. 1966), held that the Barr-Walker sentencing without a hearing was illegal. *fn1" The District Attorney was afforded an opportunity to proceed de novo against Wintz under the Barr-Walker Act, as authorized in Gerchman, supra, at 315. The District Attorney advised the court that he had nothing to produce and requested that the defendant be resentenced. The court observed that "in the absence of * * * the production of such evidence in open court, the only other recourse under Gerchman was to vacate the Barr-Walker sentence and impose new sentences within the limits of the Penal Code of 1939 as amended." *fn2" The court than vacated the original sentences, and sentenced Wintz to not less than four (4) years nor more than ten (10) years on the sodomy bill, to be computed from November 17, 1962; on the incestuous adultery bill, Wintz was sentenced to serve not less than one (1) year nor more than five (5) years, to commence to run at the expiration of the sodomy sentence.

 Relator Wintz's appeal to the Superior Court of Pennsylvania was denied per curiam, Commonwealth of Pennsylvania v. Wintz, 209 Pa.Super. 773, 230 A.2d 927, as was his petition for allocatur to the Supreme Court of Pennsylvania.

 Wintz's right to habeas corpus relief rests on three contentions: (1) that his plea of guilty at his original trial was not voluntarily nor intelligently made; (2) that the state court at the post-conviction hearing did not have jurisdiction to vacate a prior valid sentence and then resentence the relator; and (3) that the same state court did not have jurisdiction to impose consecutive sentences on the sodomy and incestuous adultery bills when the original sentences were concurrent.

 1. Voluntariness of Guilty Plea

 The relator contends that his guilty plea was neither voluntarily nor intelligently made, and that the record of his trial reveals that the court never asked the questions necessary to determine whether the plea was voluntarily and intelligently entered. It should be noted that the relator was represented by counsel at every crucial stage of the criminal proceedings against him. We do not believe that this issue is properly before us at this time.

 In the relator's petition under the state Post-Conviction Hearing Act, he indicated his claims for relief by checking two of the thirteen boxes provided on the petition form: one checked box indicated that Wintz believed his privilege against self-incrimination had been infringed; the other checked box indicated generally that he believed one of his constitutional rights had been abridged. He did not check the box for "a plea of guilty unlawfully induced". Later in the petition, he wrote that his commitment was "invalid, the judgment of conviction and sentence null and void in that, inter alia, petitioner's rights were violated as guaranteed by the Fifth, Sixth and the Fourteenth Amendments." He finally added that he had never intentionally relinquished any known right or privilege.

 After reading the relator's post-conviction petition, the state court could not have known that Wintz specifically intended to argue the involuntariness of his guilty plea. That claim simply is not articulated in the petition. Nor is there any evidence that the court subsequently became aware of the voluntariness issue; indeed, the court wrote in its opinion that "the only contention raised was that his sentence under the Barr-Walker Act was illegal * * *." On appeal to the Superior Court of Pennsylvania, the relator's counsel did brief the voluntariness issue. However, the Superior Court's decision was a per curiam affirmal, and thus does not reveal whether the appellate court considered the issue properly before them for decision.

  Under the circumstances, we find that the state courts have never had reasonable opportunity to conduct an evidentiary hearing on the issue of voluntariness. Thus we consider ourselves bound to abstain from decision on the issue until the state courts have been afforded such opportunity. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Further, we must abstain from deciding the voluntariness issue until Wintz has exhausted the state post-conviction remedy available to determine this specific claim. See United States ex rel. Singer v. Myers, 384 F.2d 279 (3d Cir. 1967).

 2. Legality of the Resentencing

 The relator raises several questions with respect to his resentencing in the state court at his post-conviction hearing. He alleges first that the state court lacked jurisdiction to vacate his Barr-Walker sentence and to impose another sentence. The alleged lack of jurisdiction is premised on the contentions that (a) the Barr-Walker sentence was valid and (b) the court did not exercise ...

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