Richard Peter Krill, Public Defender, Waynesburg, for appellant.
No appearance for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., dissents.
Appellant, Wilbur Calvert, pleaded guilty to charges of burglary and larceny and was sentenced on March 30, 1968, to ten to twenty years imprisonment. No post-verdict motions were filed. Subsequently, appellant filed a petition for post-conviction relief raising various issues, including a claim that he had not waived his right to file post-verdict motions. The trial court determined that appellant had not waived his appeal rights, and thus proceeded with a consideration of the merits of the other issues raised, including whether or not appellant was properly sentenced. Relief was denied and this appeal followed.
The sole issue raised here is whether the sentencing court erroneously considered thirty-two prior incidents in which the appellant was allegedly involved, including
past criminal convictions which were constitutionally infirm under Gideon v. Wainwright, 372 U.S. 355, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Such consideration, according to the appellant, violates principles established in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) and Commonwealth v. Bower, 442 Pa. 379, 275 A.2d 109 (1971).
In sentencing the appellant, the trial court said:
"[T]his Court has great compassion for his fellow man but this Court cannot and will not and should not tolerate the vandalization of the people of our county. For an offense of this type, this Court believes that the public's protection must be our first consideration. We look at your record and try to understand and determine how it is that a man who has been given so many chances for so many different crimes hasn't learned a good lesson by this time. Do you have anything further to say?" (Emphasis supplied.)
The prosecution admits that it does not have adequate records to establish that the appellant had the assistance of counsel at these thirty-two prior proceedings. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) reversed a felony conviction because certified records of a prior conviction, which on their face raised a presumption that defendant was denied his right to counsel in that proceeding, were introduced into evidence by the prosecution. Burgett said:
"To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477 [16 L.Ed.2d 526]) is to erode the principle of that case. Worse yet, since the ...