Opinion
November 13, 1944.
January 25, 1945.
Criminal law — Sentence — Second or subsequent offense — Proceedings of record — Act of April 29, 1929, P.L. 854 — Habeas corpus — Excessive sentence — Correction — Discharge.
1. Where a defendant is given an increased sentence for a second or subsequent offense under the Act of April 29, 1929, P.L. 854, there must be some proceeding of record by which it appears that the person sentenced was the same person who had previously been convicted, either within or without this Commonwealth, within five years, of one of the crimes specified in section 1 of the Act.
2. The term "conviction" is used in the Act of 1929 in its legal technical sense, as meaning the ascertainment of the guilt of the accused and judgment thereon by the court, implying not ony a verdict but judgment or sentence thereon.
3. Commonwealth ex rel. Cody v. Smith, 327 Pa. 311, distinguished.
4. Where, in a habeas corpus proceeding, it appears that the relator was properly convicted of the crime charged against him but that he was given an illegal and excessive sentence, the relator will not be discharged but will be resentenced in accordance with the law.
Before KELLER, P.J., BALDRIGE, RHODES, HIRT, RENO and JAMES, JJ.
Appeal, No. 71, April T., 1945, from order of C.P., Allegheny Co., April T., 1944, No. 1505, in case of Commonwealth ex rel. Edward Arnold v. Stanley P. Ashe, Warden. Order affirmed.
Habeas corpus proceeding.
The facts are stated in the opinion by EGAN, J., of the court below, as follows:
Edward Arnold, who is now imprisoned in the State Penitentiary, Western District, has filed this petition for a writ of habeas corpus, averring that he is unlawfully restrained of his liberty because of improper sentences.
The record shows that at Nos. 742 and 743 June Sessions, 1934, Court of Quarter Sessions, Allegheny County, the petitioner having been convicted on September 12, 1934 and September 18, 1934, on charges of entering buildings with intent to commit a felony, was sentenced on September 28, 1934, by the trial judge, to serve sentences of ten to twenty years in the Western Penitentiary, the sentences to run consecutively, making a total sentence of twenty to forty years. Since the date of said sentences petitioner has been confined to the penitentiary and is now confined. The record at Nos. 742 and 743 June Sessions 1934, contains nothing to show that petitioner had, at any time prior to the commission of the offenses charged in those indictments, been convicted of any other crime. However, the records in the Clerk of Court's Office shows a Charles E. Arnold sentenced, at No. 94 February Sessions 1926, on a charge of entering a building with intent to commit a felony, to serve 2 1/2 to 5 years in the Western State Penitentiary. This sentence was imposed on February 10, 1926, and that defendant was released from the penitentiary on May 10, 1931, according to the briefs.
Nothing on the record at Nos. 742 and 743 June Sessions, 1934, indicates that the sentences imposed therein were based on a record of prior conviction, nor that the Charles E. Arnold sentenced at No. 94 February Sessions, 1926, was the same person sentenced at Nos. 742 and 743 June Sessions, 1934. The record is absolutely silent as to any prior convictions or to anything that would identify the defendants as being one and the same person, nor does the record at 742, 743 June Sessions, 1934, refer to any prior case by number and term. Under the law, the maximum sentence for the commission of the offenses was five to ten years on each of said charges.
The Commonwealth contends he was sentenced September 28, 1934, at Nos. 742 and 743 June Sessions, 1934, under the provisions of the Habitual Criminal Act of 1929, P.L. 854 (19 Purdon 921, 923, 925) and that the sentences were legal, proper and binding. That Act provides that any person having been convicted of the crime of entering with intent to steal, for a second offense within five years after the first offense, may be sentenced to imprisonment for a term the maximum of which shall be not more than twice the longest term prescribed for a first conviction, and the Act further provides that in computing the five year period, time served in a penal institution shall not be included. The Commonwealth relies on Com. ex rel Cody v. Smith, 327 Pa. 311 in opposing the petition, but that case is clearly distinguishable. There Mr. Justice Barnes for the Supreme Court said (p. 314): "Two narrow questions are presented by this petition. Is it necessary that a sentence imposed for a second offense state that it is increased by reason of the provisions of the Act of 1929?" (The second question is not involved). The Court held that in view of Section 5 of the Act of 1929 such requirement does not exist. Section 5 provides: "A person need not be formally indicted and convicted as a previous offender in order to be sentenced under this Act." The opinion in the Cody case shows clearly that the same person was concerned in the two crimes, which brought him within the provisions of the Act of 1929. Furthermore, the sentence imposed in the second case clearly refers by number and term to the first case, because it was imposed in this language: — "* * * to pay a fine of 6 1/4¢, the costs of prosecution, and to undergo an imprisonment of not less than 20 years nor more than 40 years in the Western Penitentiary, this sentence to begin and take effect at expiration of sentence at No. 52 November Term 1924, (violation of parole)" 11 (underscoring ours). Therefore, the case at No. 52 November Term 1924 is brought into the record in the Cody case and the record at No. 52 November Term, 1924 shows the commission of a crime enumerated in Section 1 of the Act of 1929. In holding that the sentence need not include a provision that it was imposed by reason of the Act of 1929, the Supreme Court said (p. 315): "Particularly is this true where such increase is apparent on the face of the sentence." It there appeared on the record itself that Cody was a previous violator and that the sentence imposed upon him showed that it was to take effect after the expiration of a previous sentence at No. 52 November Term, 1924, for a violation of parole.
In the case under consideration there is absolutely nothing in the record of the sentence of this petitioner, at Nos. 742 and 743 June Sessions, 1934, which in any way discloses that he was a prior offender, or that he had ever at any time been convicted of any offense prescribed by the Act of 1929, or that he was the same person involved in the crime and sentence at No. 94 February Sessions, 1926. As the Superior Court said in Halderman's Case, 53 Pa. Super. 554, 556: "We look in vain, however, for anything in the record which * * * gives footing for the conclusion that the defendant had been previously convicted and was subject to the increased penalty."
No record was made of the proceedings before the sentencing judge, (now deceased), so that the indictments at Nos. 742 and 743 June Sessions, 1934, give us the only information as to what took place on the day of sentence. Even assuming that the petitioner was the defendant at No. 94 February Sessions, 1926, then it would be necessary to presume that this record, at No. 94 February Sessions, 1926, was brought to the attention of the sentencing judge and was used by him as the basis for the sentences imposed. The rights of an individual serving a long term of imprisonment should not be made to rest upon such an incomplete and defective record.
Therefore, it is clear that the relator is not in confinement under a lawful judgment. He ought not to be set at liberty, however, until he has undergone the imprisonment which the law imposes on one committing the offenses for which he was convicted. This practice is approved in Halderman's Case, 53 Pa. Super. 554, 558, and in re, Bonner, 151 U.S. 242. In this way the relator is relieved from the excessive punishment appearing on the record and the law is vindicated by the appropriate penalty. It is true that if the sentencing court was without warrant to impose any punishment, then the petitioner should be discharged immediately, otherwise it is merely voidable and may be corrected: Halderman's Petition, 276 Pa. 1. This rule makes necessary the modification of the judgment entered but does not result in a discharge of the relator. On the date of his sentence this relator could lawfully have been sentenced to serve an imprisonment of five to ten years in the penitentiary in each case, the sentencs to run consecutively.
Therefore, an order will be drawn directing the Warden of the State Penitentiary for the Western District of Pennsylvania, to bring the relator, Edward Arnold, under sentences at Nos. 742 and 743 June Sessions, 1934, Allegheny County, into the Court of Quarter Sessions of Allegheny County, for resentence in accordance with law as here announced.
Louis L. Kaufman, with him Russell H. Adams, District Attorney, for appellant.
Jacob Shulgold, for appellee.
Argued November 13, 1944.
The order of the court below is fully sustained by the well considered opinion of Judge EGAN. It is affirmed on that opinion.
We recognize that the Act of April 29, 1929, P.L. 854, which was in force when the sentences were imposed on relator under indictments to Nos. 742 and 743 June Sessions, 1934, provides in section 5 that a person need not be formally indicted and convicted as a previous offender in order to be sentenced for a second or subsequent offense under that act; and that the case of Com. ex rel. Cody v. Smith, 327 Pa. 311, 193 A. 38, holds that it is not necessary that the sentence imposed for a second offense should therein state specifically that it was increased by reason of the provisions of the Act of 1929, supra. Nevertheless, we are of opinion that there should be some proceeding of record by which it appears that the person sentenced was the same person who had previously been convicted, either within or without this Commonwealth, within five years, of one of the crimes specified in section 1 of the Act (now Section 1108(a) of the Penal Code of 1939). And the term `conviction' is used in the act in its legal technical sense, as meaning "the ascertainment of the guilt of the accused and judgment thereon by the court, implying not only a verdict but judgment or sentence thereon": Com. v. Minnich, 250 Pa. 363, 367, 95 A. 565; Com. v. Vitale, 250 Pa. 548, 550, 95 A. 723. The defendant has a right to know at the time of his sentence that it has been increased because of his prior conviction of a crime falling within the category stated in the act, within the previous five years, as defined in said act (sec. 3 of the Act of 1929, sec. 1108(c) of the Penal Code of 1939), so that he can appeal if he denies that he was the person alleged to have been previously convicted, or that he was so convicted within the previous five years, as defined in the act. The facts on which the doubling of the term of a sentence depends should not rest in the undisclosed knowledge of the court but should appear plainly of record somewhere so that the authority for the increased sentence is clearly established.
Repealed but re-enacted by the Penal Code of 1939, P.L. 872. See sec. 1108(e).
Order affirmed.
The foregoing opinion had been prepared by President Judge KELLER before his death on January 16, 1945. It is now adopted and filed as the opinion of the Court.