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COMMONWEALTH v. SHEEHAN (12/20/71)

decided: December 20, 1971.

COMMONWEALTH
v.
SHEEHAN, APPELLANT



Appeal from order of Superior Court, Oct. T., 1969, No. 841, affirming the order of Court of Common Pleas of Chester County, June T., 1963, No. 67, in case of Commonwealth of Pennsylvania v. James Sheehan, a/k/a James F. Sheehan.

COUNSEL

Edward Rosenwald, for appellant.

A. Thomas Parke, III, Assistant District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell dissents.

Author: Pomeroy

[ 446 Pa. Page 37]

In 1963 appellant, not represented by counsel, pleaded guilty to driving under the influence of intoxicating liquor in Chester County, Pennsylvania. See Act of April 29, 1959, P. L. 58, § 1037, 75 P.S. § 1037. The penalty imposed was a fine of $200, which appellant subsequently satisfied.

In 1968 appellant was arrested for driving under the influence of intoxicating liquor in Lancaster County, Pennsylvania. Following his indictment, but prior to trial,*fn1 appellant was informed by letter from Judge W. G. Johnstone, Jr., that "the invariable policy of the Lancaster County Court is to impose a sentence of $200 fine, costs of prosecution, and three months in Lancaster County Prison on all second offenders charged with operating a motor vehicle under the influence of intoxicating liquor."

Immediately thereafter, appellant filed a petition under the Post Conviction Hearing Act*fn2 in the Chester County Court of Common Pleas, challenging the validity of his 1963 drunken driving conviction, asserting that he had been unconstitutionally denied his right to counsel. That court, without holding a hearing, denied relief. The Superior Court affirmed the denial of relief. Commonwealth v. Sheehan, 216 Pa. Superior Ct. 26,

[ 446 Pa. Page 38260]

A.2d 496 (1969). Judge Hoffman filed a dissenting opinion, joined by Judge Spaulding. We granted allocatur to review the involved issues arising out of this proceeding.

Both the Court of Common Pleas and the Superior Court held appellant to be ineligible for relief because: (a) he did not have the necessary status -- i.e., being then incarcerated in Pennsylvania or on parole or probation -- to be eligible for relief under § 3 of the Post Conviction Hearing Act ("the Act"); and (b) the issue was moot because appellant had completely satisfied the sentence on his 1963 conviction.*fn3 The Superior Court specifically distinguished Commonwealth ex rel. Ulmer v. Rundle, 421 Pa. 40, 218 A.2d 233 (1966) and Commonwealth ex rel. Ackerman v. Russell, 209 Pa. Superior Ct. 467, 228 A.2d 208 (1967), cases holding the doctrine of mootness not applicable per se to collateral attacks directed to sentences already satisfied. Setting this case apart, in the view of the Superior Court, was the hiatus in point of time between the allegedly invalid sentence already satisfied and the imposition of a subsequent sentence.

Appellant contends that even if his claim is not cognizable under the Act, his petition should be treated as one for a writ of coram nobis or habeas corpus; that the mootness doctrine does not apply to the present case; and that he was unconstitutionally denied counsel at the 1963 guilty plea proceeding.

I.

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