*1 UNITED America ex rel. STATES HARTON, Relator- John W. Appellee, WILKINS, Attica
Walter H. Warden of Prison, Attica, York, New State Respondent-Appellant. City Koplovitz, York New Joshua N. Legal Aid (Anthony Docket F. Mara No. 28894. Polsky, York, B. Society Leon of New Court of United States counsel), City, for relator- York New Circuit. Second appellee. Argued Nov. 1964. Atty. Soloff, Gen. State Brenda Asst. Decided 1965. Atty. Lefkowitz, (Louis New York F. York, A. Samuel of New Gen. State As Modified Amy Atty. Gen., Hirshowitz, Asst. First counsel), Gen., Juviler, Atty. Asst.
respondent-appellant. SWAN, WATERMAN Before Judges.
MOORE, Circuit Judge: MOORE, Circuit (relator-appеllee), W. John custody Hartón, presently in the serving York, fif- a five New State year prison under a teen term Court) (Oswego County entered forgery, plea to the crime Law, degree. York Penal New McKinney’s Consol.Laws, c. Secs. third offend- 888. He was sentenced multiple offender er under York New legislation. York Penal Law §§ New charging information 1943. The previous felony con- two with victions set forth: (1) plea A forg- Pennsylvania, Allegheny County, felony. uttering —a (2) April 15,1958, A Pennsylvania, County, Mercer of fraudu- uttering lently mаking written strument —a In of habeas for a writ pleas corpus, petitioner as attacks both multiple of- for his basis sus- fender The trial court tained remanded writ through Oswego County the Sheriff for resentence on his of the crime of degree. respondent appeals. (appellant) Warden *2 plead- County Allegheny testified that he when The effect the April 15, light 1958, proceeding ed on in Mercer be examined in must the County, Pennsylvania, repre- Pennsylvania’s he not interpretation was this Recently (November sented counsel. The trial court has situation. 1964) Pennsylvania Supreme found did not the con- that understand thе he sequences guilty plea passed upon a or that the similar case. a somewhat charges court, Pennsylvania The there- were felonies. rel. Commonwealth ex fore, Maroney, held that the conviction was “in- Remeriez 415 204 Pa. valid, having procured in violation been petitioner the been A.2d There had rights petitioner’s of the the imprisonment under Fed- sentenced to after revoca- Appellant eral prior suspended Constitution.” was not tion of a sentence and produce any petitioner proof to probation. petitioner able that was without The hearing. had had counsel to him he advise before at counsel the revocation pleaded ap- hearing to а On this court noted that “the at which peal, appellant rely was, reality, does not on this con- imposed in sentenсe was the petitioner urg- viction. His presenting claim that is a opportunity final and felony upon is which, offender the based matters and circumstances in 5, 1957, guilty plea. June court, may the of the have discretion trial imprisonment determined the freedom or petitioner The trial court found that sentencing accused,” of the and that such appeared in court with counsel on June stage.” grant- was a “critical The relief 5, 1957, pleaded guilty and to counts of revoking pro- ed was to the vacate order forging uttering. and The sentence was imposed bation and sentence in lieu the prоbation years. for three The indict- thereof. Septem- ment bears the notation on that applied If the Remeriеz decision be open probation ber 1959 “in court” here, September 21, the 1959 revocation was and “vacatеd terminated” and that probation jail and sentence must be September 21, petitioner “now 1959 was conclusion, cоnsidered as invalid. This cents, pay sentenced to a fine of costs 6% however, open question leaves the imprisоnment and not less than three whether under New York law the June twenty-three months or more than petitioner 1957 when was months.” The trial court also found that represented by counsel, standing alone petitioner rep- on this occasion was nоt support multiple is sufficient to offender by counsel; resented that this was petitioner sentence. Since under trial stage against the proceedings “critical opinion court’s him”; is returned the and that the and conviction sen- resentenee, Court for both the September 21, tence entered 1959 were State of will invalid. argue opportunity have an raise argues Appellant petitioner’s that con- question. precluded this Nor is the State viction com- was filing a new рlete 5, 1957, purpose including guilty plea formation the establishing his second offender status any June or or 1957 other orders lаw; suspended under New York that his judgments not covered in the informa- probation sentence and were irrelevant tion оf March 1961 if such be. there established; that, this status once directing resentencing Order without therefore, subsequent revocation of the regard to the Mercer conviction probation imposition jail and the aof April 15, September 21, 1958 аnd the September 21, 1959, sentence on did not 1959 affirmed. 5, Ap- the affect June pellant’s Septem- conclusion the Judge WATERMAN, (con- Circuit proceeding ber 1959 revocation was curring) : stage” not a “critical at which represented by was entitlеd to be I coun- concur in the order of remand to the sel. Court so rela- that there may tor be resentenced dе- to the crime of regard
gree, to Mercer Coun- without judg- guilty plea ty ment conviction Sep- County sentencing proceedings of *3 5, 1957 tember the June after unconstitutionally the two judgments obtained of conviction used multiple infor- the State in thе mation which the Court sentenced offender. State,
If the at the resentencing proceedings, files up- multiple offender information based on the June proceedings, I would not foreclose relator maintaining
from that he had no effective legal representation occasion, later,
foreclose him under 28 U.S.C. § adjudication obtaining a full rеspect subsequently in that he should if bring issuance of a writ habeas, post-conviction or seek other relief. NYYSSONEN, Plaintiff, Appellant, Einard CORPORATION, Defendant, BENDIX Appellee.
No. 6189. United States Court of First Circuit.