UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: November 18, 1968.
UNITED STATES OF AMERICA EX REL. HOWARD J. VIVIAN, JR., APPELLANT,
SAUL BOOKBINDER, WARDEN HOLMESBURG PRISON
Hastie, Chief Judge, and Seitz and Aldisert, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
This is an appeal from the denial of a petition for a writ of habeas corpus in the District Court below wherein appellant alleges violation of his federal constitutional rights at his state court sentencing. He argues that he was subjected to double jeopardy,*fn1 contending that he was originally sentenced to a period of seven years' probation which was arbitrarily changed two weeks later to a ten-year jail term. Appellant has availed himself of the appropriate state post-conviction remedies, and the Supreme Court of Pennsylvania in Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967) found that the alleged re-sentencing was merely a modification of the original order of probation.*fn2
We do not deem it necessary to meet the basic argument advanced by appellant: whether the double jeopardy clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment.*fn3 An examination of the state court record convinces us that there was only one sentence pronounced in this case, following a release from custody pending the completion of an additional pre-sentence investigation for the benefit of the court.
On February 14, 1966, appellant appeared before the trial judge who stated:
"Now I will release him for two weeks. By the end of two weeks, I want a report (1) that he has a job, (2) a report from his employer as to what the job is, the hours, the pay, (3) a report from the psychiatrist who by then will have seen him and what he feels about this man and (4) a statement from Temple or Lincoln that he has enrolled and what courses and program he will take, and then I put him on probation for seven years."
The court, two probation officers, and defense counsel then discussed the specifics of a proposed plan of probation. The court lectured the defendant and concluded:
"All right, gentlemen, he is released for two weeks on the probation that I have stated. I will expect the report within two weeks."
The opinion of the Pennsylvania Supreme Court in Commonwealth v. Vivian, supra, at page 305 summarizes subsequent developments:
"On February 23, 1966, Vivian was again called before the court. In the interim the trial judge had received reports from a psychiatrist at the Director of the Forensic Psychiatric Clinic and Temple University, each of whom had examined Vivian after February 14th. Therein it was stated that an effective period of vocational training was needed if rehabilitation were to be accomplished, and probation was strongly opposed. After a consideration of these findings, the court then sentenced Vivian to imprisonment * * *."
In resorting to a full pre-sentence investigation, the court was following procedures in use in modern criminal courts.
It is generally the rule that before imposing sentence a court may inquire into matters relevant to determining the proper punishment to be imposed, 24B C.J.S. Criminal Law § 1983(2), and may receive and consider reports of psychiatrists who examined the accused, Commonwealth v. Elliott, 371 Pa. 70, 89 A.2d 782.*fn4
We cannot accept appellant's argument that the court's pronouncement on February 14 constituted a formal order of probation for a period of seven years. The court carefully stated twice that defendant was being released for two weeks only, and because of the psychiatric history of the defendant*fn5 it is obvious that the court was placing great importance on the approval of the proposed probation plan by the physicians who were to examine him during the two-week period.
There is no record of any formal written order of seven years' probation being signed by the sentencing judge. The sole basis for the appellant's argument that such was ordered must come from an interpretation of the language used by the judge in his discussion in open court: "By the end of two weeks, I want (the reports) * * * and then I put him on probation for seven years." (Emphasis supplied.) This language is susceptible of only one reasonable interpretation: that if the reports from the continuing pre-sentence investigation proved favorable, and the trial judge was satisfied that his conditions were met, an order of a seven-year probation period was then to be entered.
The reports of the psychiatrists were unfavorable; the proposed probation plan was abandoned by the sentencing judge; and a jail sentence was imposed on February 23. The court's action on this date did not constitute a resentencing, nor was it a modification of any probation plan previously mandated and already in force. The sentence of February 23 was the one and only sentence entered by the court in this case. There being only one sentence, we do not have before us the consideration of any constitutional issue of double jeopardy.
The judgment of the District Court will be affirmed.