175 Pa. Super. 128 | Pa. Super. Ct. | 1954
Opinion by
This is an appeal from the order of the Court of Common Pleas of Lycoming County, discharging rule and refusing relator’s petition for a writ of habeas corpus.
Relator is serving a life sentence in the Eastern State Penitentiary imposed under the provisions of section 1108 of The Penal Code, Act of June 24, 1939, P. L. 872, 18 PS §5108, and known as the Habitual Criminal Act.
Relator’s relevant criminal record, which is in the Court of Oyer and Terminer and General Jail Delivery of Lycoming County, is as follows:
(1) On August 21, 1942, he pleaded guilty to a bill of indictment charging burglary at No. 78, June Sessions, 1942, and was sentenced to 45 days imprisonment in the Lycoming County Jail.
(2) On January 21, 1943, he pleaded guilty to bills at Nos. 76 and 78, December Sessions, 1942, each charging burglary, and was sentenced on each bill to concurrent sentences of four months in the Lycoming County Jail.
*131 (3) On June 15, 1949, lie pleaded guilty to bill at No. 23, March Sessions, 1949, charging attempted burglary, and was sentenced to fifteen months in the Allegheny County Workhouse.
(4) On September 4, 1951, he pleaded guilty to bill at No. 87, June Sessions, 1951, charging entering with intent to commit larceny, and was sentenced to two months’ imprisonment in the Lycoming County Jail.
(5) On February 25, 1952, he was indicted on a bill at No. 27, December Sessions, 1951, charging robbery with accomplice, and also on a bill at No. 26, December Sessions, 1951, charging burglary. He pleaded guilty to the robbery indictment, and after trial was found guilty by a jury on the burglary indictment. He was sentenced to consecutive terms of imprisonment of not less than 10 years nor more than 20 years in the Eastern State Penitentiary upon the bills.
Relator also, on September 21, 1944, pleaded guilty to bills at Nos. 71 and 72, June Sessions, 1942, charging larceny and larceny of a motor vehicle, respectively, and was sentenced to Eastern State Penitentiary for a period of not less than two years nor more than four years. He had served the minimum on September 5, 1946, and was then released on parole. On July 31, 1947, he was returned to the penitentiary as a technical parole violator, and he completed serving his maximum sentence on September 5, 1948.
On May 21, 1952, the court vacated the sentences imposed on bills Nos. 26 and 27, December Sessions, 1951, and sentenced the relator to life imprisonment in accordance with the Habitual Criminal Act.
On October 28, 1952, relator filed his petition for a writ of habeas corpus in the Court of Common Pleas of Lycoming County. A rule to show cause was issued,
Relator’s principal contention is to the effect that in the proceeding attendant upon the imposition of the life sentence under the provisions of the Habitual Criminal Act, there was a failure to comply with that portion of section 1108 (d) of the Act, 18 PS §5108 (d), which provides that “it shall be the duty of the district attorney of the county in which the last conviction was had to file a complaint accusing the said person [the convicted fourth offender] of such previous convictions, and to serve a copy of such information upon the defendant thirty (30) days before taking any further proceedings in court as hereinafter set forth.”
Admittedly no such complaint was filed, and hence no copy thereof was served upon the relator. Explanatory of this omission is the testimony of relator’s former counsel, who represented him at the time of his convictions at Nos. 26 and 27, December Sessions, 1951, and at the proceeding under the Habitual Criminal Act. He testified at the habeas corpus hearing in the court below, on relator’s behalf, that it was at relator’s insistence and against counsel’s advice that the proceedings were initiated whereby the sentence of life imprisonment was imposed. According to this witness, the explanation offered by relator for such an unusual request was relator’s statement that “I have been in the Pen before, and I am acquainted with boys who had life sentences and they told me they got out in fifteen years on a life sentence.”
At the proceeding under the Habitual Criminal Act, a waiver
Relator now contends, however, that the filing of the complaint and the giving of notice thereof as provided in the Habitual Criminal Act were provisions that could not be waived. In substance, his argument is that the action of the trial court in permitting him to make such waiver and in proceeding under the Act without the complaint being filed and due notice thereof given to relator constituted a denial of due process.
While the “due process” clause of the Fourteenth Amendment requires provision for the essential rights of notice and a hearing, or opportunity to be heard, before a competent tribunal, it does not prohibit the waiver or bar the forfeiture of such rights. Frank v. Mangum, 237 U. S. 309, 338-344, 35 S. Ct. 582, 59 L. Ed. 969; Yakus v. United States, 321 U. S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 834, 859; Sunal v. Large, 332 U. S. 174, 181-184, 67 S. Ct. 1588, 91 L. Ed. 1982, 1988-1990; Brown v. Allen, 344 U. S. 443, 486, 487, 73 S. Ct. 397, 97 L. Ed. 469, 504, 505. In McCandless v. District Court of Polk County, 61 N. W. 2d 674, 678, it was stated: “It has been well said that the rights given the accused by the constitution and our statutes are shields, not weapons, and being so intended by the legislature, we must give meaning to that intent. If this is true, what must one do in order to use the shield? Must the state carry it for him? We think not:” .......
The waiver in the present case was understandingly made by the relator with full knowledge of his rights. In fact it was made at his insistence. He had the benefit of counsel at the time. We find no justification for his present complaint. Cf. Com. ex rel. Dugan v. Ashe, 342 Pa. 77, 19 A. 2d 461, certiorari denied 314 U. S. 610, 62 S. Ct. 69, 86 L. Ed. 491, 314 U. S. 712, 62 S. Ct. 294, 86 L. Ed. 567; rehearing denied 347 Pa. 588, 33 A. 2d 32.
Relator now attempts to question the admission of certain confessions which were introduced in evidence at his trial at No. 26, December Sessions, 1951, on the grounds that they were obtained by the use of force and intimidation and were.otherwise inadmissible.. The question a,s to whether, such confessions were volun
The rule is firmly established that a writ of habeas corpus can never be used as a substitute for an appeal. Com. ex rel. Marelia v. Burke, 366 Pa. 124, 126, 75 A. 2d 593. This rule has application to relator’s contention that the life sentence was unjustifiably severe in the light of the nature of the crimes constituting his prior record. Section 1108 (d) of the Habitual Criminal Act, 18 PS §5108 (d), provides that such sentence shall be reviewable on appeal by the appellate court, not only as to the alleged legal errors but also as to the justice thereof. And it further provides that where the defendant is indigent the costs of appeal together with reasonable counsel fee shall be paid by the Commonwealth. We will not review in a habeas corpus proceeding the exercise of discretion by the sentencing judge. Com. ex rel. Gryger v. Burke, 173 Pa. Superior Ct. 458, 470, 98 A. 2d 380. This is especially true where, as here, the statute provides for a review on appeal both as to alleged legal errors and as to the justice of the sentence. In any casé, one provision for corrective process is sufficient to satisfy the requirements of due process.
Relator also argues that- the procéeding under the Habitual Criminal Act was improperly invoked- because moré'than five years'-expired^ bétwéén the time- of-his
The order of the court below is affirmed.
As to its constitutionality, see Com. ex rel. Foster v. Ashe, 336 Pa. 238, 8 A. 2d 542; Gryger v. Burke, 334 U. S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683, rehearing denied 335 U. S. 837, 69 S. Ct. 13, 93 L. Ed. 389; United States ex rel. Collins v. Claudy, 106 F. Supp. 367, reversed on other grounds 204 F. 2d 624.
The following is a copy of relator’s waiver:
I, NATHANIEL FIRMSTONE, being fully informed by my attorney, George M. Hess, Jr., Esq., and the Court, of my rights*133 under the Act of June 24, 1939, P. D. S72, Section 1108, sometimes referred to as the Habitual Criminal Act, do hereby waive any requirements for a formal indictment or information alleging prior offenses.
I hereby state that I am the person who was charged and convicted of the following crimes:
No. 78 June Sessions, 1942, burglary
No. 76 December Sessions, 1942, burglary
No. 78 December Sessions, 1942, burglary
No. 23 March Sessions, 1949, attempted burglary
No. 87 June Sessions, 1951, entering with intent to steal
No. 27 December Sessions, 1951, robbery with accomplice
No. 26 December Sessions, 1951, burglary
I hereby waive any other rights I may have by virtue of the Act of June 24, 1939, P. D. 872, Section 1108.
(Sig.) Nathaniel Firmstone