Summary
affirming order dismissing habeas corpus petition where petitioner was on parole rather than in state's custody
Summary of this case from Com. v. WestOpinion
November 8, 1965.
December 16, 1965.
Criminal Law — Practice — Habeas corpus — Proceeding moot — Petitioner paroled and no longer in custody — Effective representation by counsel — Contention rejected at prior appeal.
In a habeas corpus proceeding, it was Held that the order of the court below dismissing the petition should be affirmed, where it appeared that (1) in the petition under consideration the sole contention which might be raised by habeas corpus was the denial of effective representation by counsel, and this contention had been considered and rejected in a previous appeal from the dismissal of a prior petition; and (2) as a consequence of petitioner's parole he was no longer in the custody of the superintendent of the correctional institution, wherefore the proceeding had become moot.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, and HOFFMAN, JJ. (FLOOD, J., absent).
Appeal, No. 357, April T., 1965, from order of Court of Common Pleas of Indiana County, March T., 1965, No. 372, in case of Commonwealth ex rel. Robert Edmon Wood v. J.F. Maroney, Superintendent. Order affirmed.
Habeas corpus.
Order entered dismissing petition, order by CLARK, P.J. Relator appealed.
Caram J. Abood, with him Green, Gibson Abood, for appellant.
W. Thomas Malcolm, District Attorney, with him Robert C. Earley, Assistant District Attorney, for appellee.
MONTGOMERY, J., concurred only because the question was moot.
HOFFMAN, J., filed an opinion concurring in the first point.
Argued November 8, 1965.
Robert E. Wood has appealed from an order of the Court of Common Pleas of Indiana County dismissing his petition for a writ of habeas corpus. The background of this case is summarized in our opinion affirming the dismissal of a prior habeas corpus petition. See Commonwealth ex rel. Wood v. Maroney, 199 Pa. Super. 561, 186 A.2d 864. Allocatur refused 199 Pa. Super. xxxi. Certiorari denied 374 U.S. 854, 10 L. Ed. 2d 1075, 83 S. Ct. 1922.
The order of the court below will be affirmed for two reasons. (1) In Wood's present petition the sole contention which may be raised by habeas corpus is the denial of effective representation by counsel. This contention was considered and rejected in the prior appeal. (2) As a consequence of Wood's parole he is no longer in the custody of the superintendent of the Western State Correctional Institution, wherefore the proceeding has become moot: Commonwealth ex rel. Spader v. Burke, 171 Pa. Super. 289, 90 A.2d 849.
Order affirmed.
MONTGOMERY, J., concurs only because the question is moot.
I concur in the result only, because it is clear to me that appellant was not denied the effective representation of counsel.
Whether habeas corpus relief should be extended to a parolee, however, is still in great doubt. See Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 6, n. 7, 213 A.2d 613, 616n. (1965). In my opinion, we need not pass on this issue in this case.