*1 re- have appellant might more expended effort, defendants that both The fact ceived a lesser sentence. mean that coun- the same sentence does received failed. thе codefendant efforts behalf of sel’s blameworthy more codefendant well may appellant culprit. possibility any event, especially was harmed is counsel’s actions evident, sentenсe. year of the to one hundred light fifty appellant per of sentence is is Judgment vacated, mitted to trial plea withdraw new his guilty, is ordered.* would affirm the sen- P.
Weight, tence. * resentencing case, In view оf a remand for the record in possibility would harm. not be sufficient to cure the Counsel’s question sentencing respect attitude at serious with to his raises representation plea sacrificing appellant on the itself. His intent likely that of his codefendant makes it he failed the sake adequately plead. with of whether
concern himself the merits questions. speculate to these should not When the rеcord We harm, justice replete potentiality of re- with the interests appellant plea. Whitting quire permit withdraw that we require no less. Appellant. Sheehan, *2 September Submitted Before 8, 1969. J.,P. Weight, Wаtkins, Montgomery, Jacobs, Hoeeman, Spaulding, JJ. and Cercone,
Edward for Rosenwald, appellant.
A. Thomas Parke, III, Assistant District Attorney, for appellee. Commonwealth,
Opinion by Cercone, December 1969: In June 1963 James Sheehan was аrrested and on, pleaded guilty charge to, driving while under the influence of intoxicating liquor. He was fined and pay prosecution. ordered to costs September Sheehan was again arrested whilе under driving with charged in- influence of He now toxicating liquor. stands indicted on that trial continued his charge, pending determina- lower dismissal from the court’s appeal of this tion Act. Hearing under Post Conviction claimed his first convic- In the said Sheehan petition, repre- he was not illegal tion June 1963 that pleaded time he or guilty sented time that if he is convicted sentenced; he was he be sentenced the rеcent charge, automatically a second jail term as offender even refused illegal. first conviction was lower court upset conviction. the first It secure opinion is our this cannot the Pоst Conviction Hearing relief under Act “To be under eligible act, states prove . . . That he person following: (b) in the Commonwealth of un- Pennsylvania incarcerated parole a sentence deаth or on der imprisonment, Act of P. probation.” January (1965) L. 25, 1966, *3 19 P.S. 1180-3. neither Sec. Sec. Sheehan is probation. nor on parole incarcerated so Superior In Commonwealth v. Ct. to petition court rеfused to a 227 allow (1964), had been executed judgment fully aside a set petitioner seeking to erase former even that to avoid sentenced a offend being conviction as second on an thе York courts offense sub er New prior of the the execution sentence. We there sequent stated: discharged parole from
“Since Garner was in No- that conclude Pennsylvania we vember, 1950, juris- over his judgment over Garner and diction sentence that time. where a terminated sentence Generally, power of the court fully has been to modi- executed, or to a impose or amend the sentence new sentence fy expired. or not the term whether has Com- is gone, v. Berry Tees, monwealth ex Ct. A 110 court will proceed no subject where there is matter on adjudication
29 which the judgment operate. the court can Parker 362 U.S. Ed. Ellis, S. L. (1960).”
This court adopted then and quoted dissenting opinion of Mr. Justice Minton United States Morgan, 346 U.S. 74 S. Ct. fol- as (1954), lows :
“The devised being open here is either wide ex-convict еvery as he it limit- long lives else is ed to those who have returned to crime and want record expunged subsequent lessen a sentence. Ei- ther alternative unwarranted to me. seems important
“The
prinсiple that
for redressing
means
deprivations of constitutional
rights should be availa-
often
important
ble
clashes with
also
principle that
point
should
judgment
some
become final —that
end.
eventuаlly
come to an
con-
litigation
These
principles have
flicting
traditionally been accommodat-
ed in federal criminal cases
collateral
by permitting
judgment only during
punish-
attack on a
time
is
ment under
Con-
imposed,
limited the use of
has so
gress
proceedings
motion
under 28 U.S.C.
U.S.C.A.
If
§2255,
§2255.
do
to be
should
it.”
changed, Congress
our Pennsylvania Supreme
In 1966
Court handed
decision
down its
rel. Ulmer Run
date of and habeаs the lawful sentences imposed, it.” pus is the available to obtain only remedy Ackerman v. Russell, Commonwealth time of at the (1967), petitioner Hear- under the Post Conviction filing Act subsequently was sentence ing serving imposed that which he contended invalid. This court did was from not find failure any petitioner’s waiver arising by him, raise the issues filed previous proceedings and we held that decision over- impliedly Ulmer rule ruled the that a sentence which has longstanding be attacked. cannot expired Ulmer We limit the effect of the and Acker- man present decisions to the fact situation both, there is a sentence while subsequent where is, the invalid sentence is served and subsequent wishes credit toward the sentence for time served on the invalid sentence. It opinion is our the Ulmer Ackerman decisions do not apply to this case before us which there is a hiatus between imposi- the executed invalid sentence alleged and the tion of subsequent sentence. As reasoned already this court in Commonwealth by Garnеr, supra, point some should become litigation final — eventually come an end. Order affirmed.
Dissenting Opinion J.: Hoffman, from vigorously dissent the majority’s attempt Commonwealth v. revive Pa. Superior Ct. A. 2d and its denial of a remedy to appellant. held that a defendant
Garner could not attack a affected a sentence he sentence was if serving had been served. former That rationale Supreme Court rejected *5 ex rel. Ulmer v. 421 Pa. Rundle, 218 A. 2d 233 40, and by this Court in Commonwealth Ackerman v. 209 Pa. Russell, 228 A. 467, 2d 208 (1967).
We stated in Ackerman: “Prior specifically Ulmer it was held us that a sentence which had expired not be attackеd. might Commonwealth citations we [supra; ... However, omitted]. find Ulmer a contrary ruling which over- impliedly rules . Garner . . Therefore, [citation omitted]. argument expiration prevents sentence no longer an on Id. expired.” attack the sentences which have I at 472. in Ackerman it overruled joined because Garner.
I
and Ackerman to the instant
would
Ulmer
apply
is not incarcerated under
though appellant
even
case,
Hearing
Conviction
See Post
yet.
second sentence as
§3,
P. L. (1965)
January
1580,
Act of
Act,
provide
designed
The Act was
19 P.S. §1180-3.
were
if convictions
determining
for
procedure
uniform
process of
without due
and sentences
obtained
towas
procedure
Id.
P.S.
law.
§2,
§1180-2.
procedures
and statutory
law
all common
“encompass
takes
exist when this statute
purpose
for the same
Ibid.
аnd coram nobis.”
corpus
habeas
including
effect,
a uni-
grant
the Act
construe
Accordingly,
would have relief
who
petitioners
for
procedure
form
under
statutes.
law
common
con-
reluctant
tо so
Court
if the
even
However,
remain
and coram nobis
Act,
strue
peti-
consider the
may
we
appeal,
and,
remedies
as
un-
of relief
raising
question
properly
below
tion
Tinson,
See
them.
der
(1969).
hеld
traditionally
nobis has
coram
The writ
un-
record,
“extrinsic of the
fact,
errors
lie
known
unknowable
diligence
exercise of
the time of
if
its
and which would,
rendition,
knoAvn,
prevented
the entirety
either
its
form
rendered.” Commonwealth
which it ivas
41 A. 2d
Harris, 351
See
Commonwealth v.
soundable grant coram re [post-Gideon nobis (1964) 2d 727 144 2d 3 N.Y. 2d N.E. Silverman, v. People 200, ; lief] 2d 11 Cf. Davis v. 191 (1957). State, 165 N.Y.S. 10, parte Ex 412 S.W. 1966); Morgan, 440 (Fla. 2d So. State v. App. 62 1967); Crim. Angevine, (Tex. P. 2d 329 (1963). Also see 385 Frank, 980, Wash. (1953). Nobis Coram not clear that habeas it is
Moreover, traditional not a remedy it is attack lie,
33
so-called mоot convictions. Cf.
v. La
391
Vallee,
Carafas
U.S.
88
(1968) ;
S. Ct. 1556
234,
Stevens v.