Opinion
December 12, 1963.
March 19, 1964.
Criminal Law — Practice — Conviction and sentence invalid — Retrial on remand.
1. Where a prisoner's conviction and sentence are invalid because he was not afforded a fair trial, on remand the State will be given a reasonable time within which to retry petitioner.
2. Where a conviction is set aside because legally invalid, the former proceeding is a nullity and leaves the indictments open and unsatisfied.
3. Where it appeared that defendant pleaded guilty, without aid of counsel, to indictments charging larceny, and sentence was imposed; that a petition for a writ of habeas corpus alleging that lack of counsel constituted a violation of due process was refused by the courts of the Commonwealth, but ultimately the Supreme Court of the United States granted defendant's petition for a certiorari and remanded the case to the District Court "for further consideration in light of Gideon v. Wainwright", and the District Court granted a writ of habeas corpus and directed that defendant be given a new trial with counsel assigned by the court to represent him; and that defendant was tried and found guilty on all the indictments; it was Held that defendant's contention, that he should have been released and his sentences vacated, was without merit.
Criminal Law — Sentences — Discretion of trial judge — Reasons for penalty imposed — Sentence within statutory limits — Sentences more severe on second conviction — Appellate review.
4. Where it appeared that following the pleas of guilty in the original proceeding defendant was sentenced on each of the four indictments charging larceny for a term of not less than one year nor more than three years, to be served consecutively; and that after remand of the case, and following defendant's conviction before the trial judge, without a jury, defendant was sentenced on each indictment for a term of not less than one and a half years, nor more than five years, to run consecutively; it was Held that defendant's contention that the more severe sentences imposed on the second conviction were excessive, was without merit.
5. The extent of sentence is a matter within the discretion of the trial judge, and the sentence imposed will not be disturbed if within the statutory limits.
6. Where the sentence imposed is within the limits fixed by law, the appellate court will not inquire into the trial court's reasons for the penalty imposed.
ERVIN and WOODSIDE, JJ., took no part in the consideration or decision of this case.
Before RHODES, P.J., WRIGHT, WATKINS, MONTGOMERY, and FLOOD, JJ. (ERVIN and WOODSIDE, JJ., absent).
Appeals, Nos. 45, 46, 47, and 48, March T., 1964, from judgments of Court of Quarter Sessions of Dauphin County, Sept. T., 1945, Nos. 301, 302, 303, and 304, in case of Commonwealth of Pennsylvania v. Thomas H. Davis. Judgments of sentence affirmed.
Indictments charging defendant with larceny. Before SOHN, P.J., without a jury.
Defendant adjudged guilty and judgment of sentence entered thereon. Defendant appealed.
Sebastian D. Natale, for appellant.
John A.F. Hall, Assistant District Attorney, with him Martin H. Lock, District Attorney, for Commonwealth, appellee.
Argued December 12, 1963.
This is an appeal from the judgments of sentence of the Court of Quarter Sessions of Dauphin County.
On December 10, 1945, defendant, Thomas H. Davis, pleaded guilty, without aid of counsel, to four indictments charging larceny. The pleas of guilty were heard by Judge ROBERT E. WOODSIDE in the Court of Quarter Sessions of Dauphin County. Defendant was sentenced on each indictment for a term of not less than one year nor more than three years, to be served consecutively, or a total of not less than four years nor more than twelve years.
Defendant had a long history of juvenile delinquency when he entered his pleas of guilty before Judge WOODSIDE. Thereafter, defendant committed various parole violations, including convictions for crimes committed on parole — robbery in 1954 and larceny in 1958. He also filed numerous petitions for writs of habeas corpus. Judge KREIDER of Dauphin County refused a petition which alleged that lack of counsel constituted a violation of due process. The dismissal of the petition was affirmed by this Court. See Com. ex rel. Davis v. Banmiller, 192 Pa. Super. 130, 159 A.2d 770. An allocatur was refused by the Supreme Court of Pennsylvania (192 Pa. Super. xxvi), and certiorari was denied by the Supreme Court of the United States ( 364 U.S. 846, 81 S. Ct. 89, 5 L. Ed. 2d 70). Subsequently the Supreme Court of the United States granted defendant's petition for certiorari, and, on June 17, 1963, remanded the case to the United States District Court for the Eastern District of Pennsylvania "for further consideration in light of Gideon v. Wainwright, 372 U.S. 335, 9 L ed 2d 799, 83 S Ct 792, . . ." ( 10 L. Ed. 2d 1044). The District Court granted a writ of habeas corpus, and directed that defendant be given a new trial with counsel assigned by the court to represent him.
On September 13, 1963, defendant was tried before President Judge SOHN, without a jury, and was represented by court-appointed counsel. He was found guilty on all four indictments, and was sentenced on each for a term of not less than one and a half years nor more than five years, to run consecutively, or a total of not less than six years nor more than twenty years. In imposing sentence defendant was given credit for time previously served on the prior sentences.
Defendant took the position that he should have been released and his sentences vacated. Defendant also contends that the more severe sentences imposed on the second convictions were excessive.
At the trial before President Judge SOHN, no post-conviction motions were filed; nor was the question of the severity of the sentences on the second trial raised in the court below. Ordinarily, matters not raised by proper post-conviction motions or considered in the court below cannot be invoked on appeal in this Commonwealth even though they involve constitutional questions. Com. v. Clark, 198 Pa. Super. 64, 67, 181 A.2d 859. However, we shall dispose of the appeal on its merits.
In view of the order of the United States District Court, expressly directing a new trial on the charges made in 1945, defendant's contention that he should have been released is without merit. It is clear that, where a prisoner's conviction and sentence are invalid because he was not afforded a fair trial, on remand the state will be given a reasonable time within which to retry petitioner. Irvin v. Dowd, 366 U.S. 717, 729, 81 S. Ct. 1639, 6 L. Ed. 2d 751, 759.
A plea of former jeopardy cannot be maintained here. "It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal." Forman v. United States, 361 U.S. 416, 425, 80 S. Ct. 481, 4 L. Ed. 2d 412, 419.
Where a conviction is set aside because legally invalid, the former proceeding is a nullity and leaves the indictments open and unsatisfied. "In legal contemplation, there never was a trial." Com. ex rel. Townsend v. Burke, 361 Pa. 35, 41, 63 A.2d 77, 80. See, also, Com. v. Gibbs, 167 Pa. Super. 79, 86, 74 A.2d 750.
The sentences imposed were not excessive. Where the sentences imposed are within the limits fixed by law, we will not inquire into the court's reasons for the penalties imposed. Com. ex rel. Clouthier v. Maroney, 201 Pa. Super. 493, 496, 193 A.2d 640; Com. ex rel. Camara v. Myers, 201 Pa. Super. 496, 499, 193 A.2d 642. Under the Act of June 24, 1895, P.L. 212, § 8, 17 Pa.C.S.A. § 192, this Court has the power to modify any "judgment or decree as it may think to be just, . . .". However, the extent of sentence is a matter within the discretion of the trial judge and will not be disturbed if within the statutory limits. Com. v. Zelnick, 202 Pa. Super. 129, 131, 195 A.2d 171.
In imposing sentence, the court below could have taken into consideration the long record of defendant, his parole violations, and the fact that he entered pleas of guilty before Judge WOODSIDE. President Judge SOHN, as the trial judge, saw and heard defendant and the witnesses. The sentences imposed were within the limits prescribed by statute. On the record before us we find no reason for the modification of the sentences as excessive.
The judgments of sentence are affirmed.
ERVIN and WOODSIDE, JJ., took no part in the consideration or decision of this case.