Appeal from order of Court of Common Pleas of Chester County, June T., 1963, No. 67, in case of Commonwealth of Pennsylvania v. James Sheehan, also known as James F. Sheehan.
Edward Rosenwald, for appellant.
A. Thomas Parke, III, Assistant District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.
[ 216 Pa. Super. Page 27]
In June 1963 James Sheehan was arrested on, and pleaded guilty to, a charge of driving while under the influence of intoxicating liquor. He was fined and ordered to pay the costs of prosecution.
In September 1968 Sheehan was again arrested and charged with driving while under the influence of intoxicating liquor. He now stands indicted on that charge, his trial being continued pending determination
[ 216 Pa. Super. Page 28]
of this appeal from the lower court's dismissal of his petition under the Post Conviction Hearing Act. In the said petition, Sheehan claimed his first conviction in June 1963 was illegal in that he was not represented by counsel at the time he pleaded guilty or at the time he was sentenced; that if he is convicted on the recent charge, he would automatically be sentenced to a jail term as a second offender even though the first conviction was illegal. The lower court refused to upset the first conviction.
It is our opinion that this petitioner cannot secure relief under the Post Conviction Hearing Act which states that "To be eligible for relief under this act, a person must . . . prove the following: (b) That he is incarcerated in the Commonwealth of Pennsylvania under a sentence of death or imprisonment, or on parole or probation." Act of January 25, 1966, P. L. (1965) 1580, Sec. 3, 19 P.S. Sec. 1180-3. Sheehan is neither so incarcerated nor on parole or probation.
In Commonwealth v. Garner, 204 Pa. Superior Ct. 227 (1964), this court refused to allow a petition to set aside a judgment which had been fully executed even though petitioner was seeking to erase that former conviction to avoid being sentenced as a second offender by the New York courts on an offense imposed subsequent to the execution of the prior sentence. We there stated:
"Since Garner was discharged from parole in November, 1950, we conclude that Pennsylvania jurisdiction over Garner and over his judgment of sentence terminated at that time. Generally, where a sentence has been fully executed, the power of the court to modify or amend the sentence or to impose a new sentence is gone, whether or not the term has expired. Commonwealth ex rel. Berry v. Tees, 177 Pa. Superior ...