in Federal Criminal Rule 32 upon the Constitution.
Instead, it merely observed that this right is "ancient in the law." United States v. Behrens, 375 U.S. 162, 165, 84 S. Ct. 295, 11 L. Ed. 2d 224 (1963). Since Federal habeas relief is essentially limited to constitutional or Federal statutory errors, 28 U.S.C. § 2241, any further consideration is foreclosed.
Parenthetically, we note that even under the law of the Commonwealth, the right to allocution is extended only in capital cases. Commonwealth ex rel. Ashmon v. Banmiller, 391 Pa. 141, 137 A.2d 236 (1958), cert. denied 356 U.S. 945, 78 S. Ct. 792, 2 L. Ed. 2d 820 (1958); Commonwealth ex rel. Lockhart v. Myers, 193 Pa.Super. 531, 165 A.2d 400 (1960), cert. denied 368 U.S. 860, 82 S. Ct. 102, 7 L. Ed. 2d 57 (1961).
For his participation in the crimes represented by the aforementioned Bills, the relator received an aggregate sentence of 50 to 100 years imprisonment. It is asserted that a sentence of this magnitude amounts to cruel and unusual punishment, contrary to the 8th and 14th Amendments.
Recognizing that "cruel and unusual" is somewhat imprecise, the relator asks us to consider Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910), where the defendant, a disbursing officer for the "Bureau of Coastguard", was found guilty of falsifying a "public and official document, by entering therein, as paid out, the sums of 208 and 408 pesos, respectively, as wages to certain employees of the Lighthouse Service." Weems supra, at 363, 30 S. Ct. at 547. Instead, the defendant Weems appropriated the sums to his own use. For this crime, he received 15 years imprisonment 12 of which would be served in irons.
Although the Supreme Court had no difficulty in concluding that Weems had been subjected to cruel and unusual punishment, this case is of limited assistance here, since the relator has been sentenced on five separate crimes, while Weems was only charged with a single crime.
While it is true that the five crimes were committed in a comparatively short period of time, each involved a rational, voluntary, separate decision to infringe upon the rights of the victims. Each was indeed a separate manifestation of the defendant's mens rea. Considering each offense individually as we properly should, we cannot conclude that the imposition of 10 to 20 years imprisonment for each offense is completely arbitrary and shocking to our sense of justice, recognizing that the sentencing Judge was presented with a comprehensive indication of the relator's potential for rehabilitation. Rogers v. United States, 304 F.2d 520 (5th Cir. 1962). Kasper v. Brittain, 245 F.2d 92 (6th Cir. 1957), cert. denied 355 U.S. 834, 78 S. Ct. 54, 2 L. Ed. 2d 46 (1957).
Finally, it is asserted that the relator was denied effective assistance of counsel at the time of sentencing.
The respondent concedes that in light of a similar finding by the Judge presiding at the Post Conviction proceeding." * * * the Commonwealth would not oppose the entry of an order that relator be produced before the trial judge for resentencing."
In our view, the conclusiveness of an answer, if uncontroverted, forecloses examination of the merits of the allegation 28 U.S.C. § 2248. The relator must be resentenced.
AND NOW, this 10th day of October 1968, it is HEREBY ORDERED that the petition for a writ of habeas corpus, is conditionally GRANTED; however, the execution of the writ is HEREBY STAYED for 60 days from the date of this Order to permit the Commonwealth to present the relator before the trial judge for resentencing. Upon completion of said resentencing the petition for a writ of habeas corpus is DENIED, at which time this Order becomes final for purposes of appeal. In my opinion there is probable cause for appeal.