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May 27, 1969

UNITED STATES of America ex rel. Joseph Russell BRESNOCK
Alfred T. RUNDLE, Superintendent

The opinion of the court was delivered by: MASTERSON

 The relator, Joseph Russell Bresnock, currently is imprisoned at the State Correctional Institution at Graterford, Pennsylvania. He is serving concurrent terms of imprisonment there of two and one-half to five years and ten to twenty years imposed by the Court of Quarter Sessions of Schuylkill County, Pennsylvania, on September 26, 1960. These sentences were imposed upon the relator after he pleaded guilty to charges of Prison Breach, in violation of P.L. 575 § 1, July 12, 1961, Title 18 P.S. § 4309, and Holding a hostage in a penal institution, in violation of P.L. 872, § 723.1, June 24, 1939, Title 18 P.S. § 4723.1, contained in Bills of Indictment Nos. 893, and 894, of the November Term, 1960.

 The relator did not challenge the entry of his guilty pleas until June 4, 1965, when he filed a petition for writ of habeas corpus with the state trial court. In his petition he alleged that his conviction was unconstitutional because he had been deprived of the effective assistance of counsel, had been coerced into making a confession, and had involuntarily and unknowingly entered his guilty pleas. After a hearing on April 18, 1966, the state trial court denied the petition by Opinion and Order dated December 12, 1966. The relator's subsequent petition to the Superior Court of Pennsylvania was dismissed per curiam, on July 16, 1967, and his petition for allowance of appeal to the Supreme Court of Pennsylvania was denied on August 24, 1967. He has filed this petition for a writ of habeas corpus pursuant to Title 28 U.S.C. § 2241 et seq. For the reasons discussed below the relator's petition is granted.


 Although the state trial court conducted a fairly comprehensive evidentiary hearing on the matters raised in the relator's petition there for habeas corpus, this Court has conducted a further evidentiary hearing for purposes of assuring the relator the fullest opportunity to complete his factual record. Testimony presented at both these hearings, and in the course of other relevant proceedings, establishes the following as the relevant factual background of this case. *fn1"

 During the summer of 1960, the relator was imprisoned at the Schuylkill County Prison in Pottsville, Pennsylvania, awaiting trial on charges of carrying a concealed deadly weapon in violation of the Uniform Firearms Act, and of violating the conditions of his parole, as specified in Bills of Indictment Nos. 757, and 757A, September Term, 1960. For purposes of defending himself against these charges he was represented by an attorney who had been retained privately by his family in June or July of 1960 (FHH, N.T., 109), and who had had extensive trial experience generally throughout the Commonwealth of Pennsylvania and particularly before the Courts of Schuylkill County. (SHH, N.T., 104.) Trial on these charges was scheduled for Wednesday, September 14, 1960.

 On Tuesday evening, September 13, 1960, Wayne Brown, a co-prisoner of the relator at Schuylkill County Prison, complained about a headache to Guard Peter Humetsky and asked Humetsky to give him some aspirin. The relator, who in the preceding weeks had discussed with Brown the possibility of escaping, and who recognized at this time that Brown was initiating an escape that evening, approached Humetsky and demanded that the latter surrender his prison keys. At the time the relator carried a wooden replica of a 38-automatic pistol in his pocket and it appears that he, at least, threatened Humetsky that he had a gun, and that, probably, in threatening the guard, he poked him in the ribs or in the back with the wooden gun. (SH., N.T., 5; to the contrary, see, SHH, N.T., 30.)

 While the relator and Brown were escorting Guard Humetsky out of the prison cell block they encountered two other guards, James L. Sullivan and Robert Huffman. They informed them that they were staging an escape and indicated to them that they were armed. Either Brown or the relator herded and locked Humetsky and Huffman in a closet at the end of the corridor of cells, and, taking Sullivan with them, they proceeded to leave the cell block. They walked towards the outer wall of the prison which they intended to scale with a ladder taken from a prison stockroom. As they were climbing the ladder the escape was aborted when they were apprehended by the Warden of the Prison, John Downey, and several other guards. The relator and Brown quickly surrendered and they were placed immediately in solitary confinement.

 Later that evening the relator was taken to the Warden's room for purposes of interrogation. The Chief Schuylkill County Detectives at that time, William Keuch, conducted the interrogation and prepared a statement inculpating the relator in the crimes of prison breach and holding a hostage. Relator started to sign the confession but changed his mind, declaring that he did not want to sign the statement, i.e., "I see too much of this statement business, and I won't sign it." (SH, N.T., 8.) The Commonwealth concedes that the relator was not represented by counsel during this interrogation.

 Relator's trial on the charges against him in Bills of Indictment Nos. 757 and 757A, which had been scheduled to commence on Wednesday, September 14th, was continued because of the relator's involvement in the attempted escape the night before. Relator's counsel did visit the prison on Wednesday, however, and at that time the relator told him about the attempted escape and asked counsel to represent him on any charges which might arise out of that incident. (FHH, N.T., 83.) Counsel assured relator that he would inquire from the relevant authorities what crimes, if any, were to be charged against the relator, and that he would represent him against any charges. (SHH, N.T., 12, 44-46.)

 Relator's trial on Bills of Indictment Nos. 757 and 757A commenced later that week, on September 16th, and during that afternoon a jury returned a verdict of guilty on both charges. After the jury announced its verdict relator's counsel suggested to the Court that it order a psychiatric examination for the relator who had acted in a highly emotional fashion throughout the week. (SHH, N.T., 110, and FHH, N.T., 87.) The Court deferred its decision on this request until Tuesday, September 20th, the day scheduled for sentencing on these convictions.

 Throughout all the collateral proceedings in this case the relator has insisted that late on the evening of Monday, September 19th, he was escorted surreptitiously to a preliminary hearing conducted before an Alderman. In its Opinion, dated December 12, 1966, denying the relator's Habeas Corpus petition, however, the state trial court found as a fact that the Alderman's Hearing was conducted during the afternoon of September 19th and all credible testimony advanced here requires an identical conclusion. (FHH, N.T., 27.) At this hearing the relator was not represented by his trial counsel. The relator was charged by informations presented at the hearing with the crimes of prison breach and holding a hostage and he entered oral pleas of guilty to those offenses.

 On the next day, Tuesday, September 20th, the relator was sentenced on both charges contained in Bills of Indictment Nos. 757 and 757A. After the sentencing was completed he was arraigned on Bills of Indictment Nos. 893 and 894 which charged him with the crimes of prison breach and holding a hostage. Counsel announced to the Court the relator's intention to plead guilty to these offenses, as they had been recited by the District Attorney, and the Court, without interrogating the relator at all about his understanding of the offenses charged or about his understanding of the consequences of pleading guilty, accepted the pleas, and continued the Sentencing Hearing until Monday, September 26th. (A, N.T., 1-2.)

 The record does not indicate clearly how often or how extensively the relator and counsel conferred between September 20th and September 26th. It does appear, however, that they did meet, at least once, on the 23rd, when counsel explained to relator, possibly for the first time, the penalties ...

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