182 Pa. Super. 169 | Pa. Super. Ct. | 1956
Opinion by
These are the facts, taken from relator’s petition in this habeas corpus proceeding: Relator was arrested on August 10, 1946, on a number of separate charges of burglary and the larceny of an automobile and other property. While awaiting trial on these charges he escaped from the Bucks County Prison on August 20, 1946 but was recaptured the same day but not before he had stolen another automobile from a private garage. These offenses are the subjects of Bills 94 and 90. Thereafter on September 4, 1946, relator entered pleas of guilty in open court to four indictments embodying the charges upon which he was originally arrested and on additional bills charging him Avith prison breach and burglary. The late Judge Calvin S. Boyek who received the pleas sentenced him on Bill 91, one of the burglary charges, to a term of imprisonment in the Eastern State Penitentiary of not less than 3 nor
The two sentences apparently were lumped for parole purposes in accordance with the Act of June 25, 1937, P. L. 2093, 19 PS §897, and between September 4, 1946, the date of sentence, and April 11, 1956 relator was twice paroled by the Pennsylvania Board of Parole, once on February 12, 1951 and again on June 23, 1954. He violated the conditions of these parole orders and in each instance was returned to prison. On the first occasion he was at least a technical parole violator. On September 13, 1955, during the period of his second parole he was convicted of violation of the Uniform Firearms Act of May 21, 1943, P. L. 485, 18 PS §4628, et seq., and was sentenced to the Bucks County Prison for 30 days. After serving this sentence he was returned to the penitentiary as a convicted parole violator to serve the remaining terms of his 1946 sentences. These sentences, with credits for all time actually served plus the “street time” of the first parole, as computed on the prison records will expire on December 3, 1959. Cf. Act of August 24, 1951, P. L. 1401, 61 PS §331.21a.
On relator’s petition in this proceeding, filed on April 11, 1956, the respondent was ruled to show cause why a writ of habeas corpus should not issue. On May 11, 1956, the date set for hearing, relator was brought into court. He there was represented by counsel of his own choice and he testified at length.
In his petition he had contended that prison breach, a misdemeanor, is punishable only by simple imprisonment. And accordingly he averred that his sentence
Relator contended further that there was a denial of due process in that he was not represented by counsel at the time he pleaded guilty and was sentenced. The record shows that he made no request for counsel before entering his pleas of guilty to the four indictments. Even assuming that the judge did not advise the relator as to his right to court-appointed counsel, he cannot now complain under the circumstances. In general the failure of the court to provide counsel when none is requested, does not constitute a denial of due process. And to constitute such denial the burden is on one who asserts it to show that because of the lack of counsel to advise him, an ingredient of unfairness actively operated in the process that resulted in his conviction and subsequent confinement. Com. ex rel. Hallman v. Tees, 179 Pa. Superior Ct. 490, 118 A. 2d 273; Com. ex rel. Henderson v. Kruger, 180 Pa. Superior Ct. 374, 119 A. 2d 870. There was no element of prejudice or unfairness in this instance in the failure of the court to appoint counsel for relator. And under the circumstances Uveges v. Commonwealth of Pennsylvania, 335 U. S. 437, 69 S. Ct. 184, does not rule this case. Relator was 21 years and 9 months of age when he entered his pleas. The charges were numerous but they were not
At the time of sentence relator’s juvenile court record was brought to the attention of Judge Boyer, the sentencing judge. In this there was no error. He had been brought into the juvenile court on one serious charge. He was found delinquent because of a burglary committed by him in 1942 when he was more than 17 years old, and was placed on probation. Section 19 of the Act of June 2, 1933, P. L. 1433, 11 PS §261 provides : “The disposition of a child or any evidence given in a juvenile court shall not be admissible . . . against the child in any case Or proceeding in any other court.” The juvenile court in this instance was the Court of Quarter Sessions of Bucks County. 11 PS §243. The above prohibition of the Act had no application here. The judge was entitled to all of the material facts to
Finally, relator contended that wbat was said by tbe judge
Order affirmed.
Judge Boxee immediately before sentencing relator said to him: “This Court tried to help you many years ago by placing you on probation when you were charged with burglary as a boy. You committed a serious crime there . . . This Court was so anxious to help you and to make a man of you that instead of sending you away, as we might have done, we placed you on probation in charge of Miss Bright, the Probation Officer. We did not hear any more about you after that until this occurrence here. That should have taught you several things. It should have taught you in the first place, that it is foolish, it is stupid, it is just plain dumb, to com-' mit crimes. There is nothing gained by it. You are no richer than you were because of these crimes. You haven’t won any respect from anybody. Everybody that knows you will now despise you. They will look down upon you. Everybody of any intelligence, everybody of any standing or decency now looks down upon you as just a stupid, common criminal. Now can you think of anything that could be said in your own favor? I can’t think, of anything.”