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COMMONWEALTH PENNSYLVANIA v. JOSEPH GAITO (04/18/80)

filed: April 18, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH GAITO, JR., APPELLANT



COUNSEL

Joseph Gaito, Jr., appellant, in pro per.

Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Spaeth, Montgomery and Lipez, JJ.

Author: Lipez

[ 277 Pa. Super. Page 406]

This is an appeal from a judgment of sentence imposed on September 6, 1978, in a resentencing proceeding conducted because appellant was denied his right to counsel at his original sentencing in 1959. Appellant had been convicted by a jury in 1959 of burglary, assault with intent to kill, and violation of the Firearms Act. After the jury trial, post-verdict motions were filed and denied by the trial judge. A ten to twenty year sentence was imposed for burglary, with a consecutive three-and-a-half to seven year sentence for assault with intent to kill. Sentence was suspended for the Firearms Act violation. On direct appeal, this court affirmed. Commonwealth v. Gaito, 195 Pa. Super. 356, 172 A.2d 184 (1961), allocatur refused, 196 Pa. Super. xxxi, cert. den'd, 368 U.S. 998, 82 S.Ct. 623, 7 L.Ed.2d 535 (1962).

Over the past two decades, the proceedings in connection with appellant's requests for relief from his 1959 convictions to a variety of federal and state courts, as well as other official bodies, have been numerous and extensive. We will confine our discussion to the procedural history germane to the resentencing order before us in this appeal. In 1976 appellant's minimum sentences for both the burglary and

[ 277 Pa. Super. Page 407]

    assault with intent to kill were commuted to zero days by the Honorable Milton J. Shapp, Governor of Pennsylvania, on recommendation of the Board of Pardons. On August 24, 1978, the court below entered an order reciting that the United States District Court for the Western District, acting on a habeas corpus petition filed by appellant, had issued an order dated July 18, 1978, requiring that appellant be resentenced with counsel within sixty days on the 1959 convictions for burglary and assault with intent to kill. The August 24 order of the court below accordingly went on to appoint counsel for appellant for the resentencing proceeding, which it scheduled for September 6, 1978.

The transcript of the resentencing hearing indicates that appellant appeared with his appointed counsel, and an assistant district attorney represented the Commonwealth. The prosecutor began the hearing by explaining to the sentencing judge*fn1 why the resentencing proceeding was being held. The sentencing judge asked what the original sentence had been, and appellant's appointed counsel [hereinafter "sentencing counsel"] said, "Thirteen and a half to 27 years." The prosecutor then explained that there had been consecutive sentences of ten to twenty years and three-and-a-half to seven years; that the effect of the 1976 commutation had been to make appellant eligible for immediate parole, which was soon granted; that shortly after his parole, appellant was arrested for a firearms violation; that appellant's eventual conviction of that violation resulted in a two-and-a-half to five year sentence,*fn2 which appellant was then serving. The following colloquy ensued:

"[THE COURT]: What are you asking the Court to do today?

[ 277 Pa. Super. Page 408]

[PROSECUTOR]: I'm asking the Court to reimpose the sentence that Judge Clark [the 1959 trial judge] ...


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