Opinion
September 11, 1963.
December 12, 1963.
Criminal Law — Practice — Writ of error coram nobis — Allegations of relator — Conviction as fourth offender — Inclusion of indictments in which relator pleaded guilty when only seventeen years of age — Inclusion of convictions when he was not represented by counsel.
In this case, in which it appeared that relator filed his fourth petition for a writ of error coram nobis; that, also, previously he had unsuccessfully filed five applications for writs of habeas corpus and for an appeal nunc pro tunc; that relator alleged that his conviction as a fourth offender was invalid, in that it had included two indictments in which he had pleaded guilty when he was only seventeen years of age, styled by him "juvenile convictions" (which contention had previously been raised by relator in one of the prior applications for a writ of error coram nobis); that relator further contended that he was denied the assistance of counsel at the times of the three prior convictions which formed part of the record upon which he was convicted as a fourth offender; that there was nothing in the record which indicated that relator had ever asked for and been denied counsel other than his own assertion; and that the court below, without determining whether the decision in Gideon v. Wainwright, 372 U.S. 335, is to be interpreted and applied retroactively or prospectively only, holding that the fact that relator might not have had counsel at the times he pleaded guilty on the three occasions cited by him could at most have been an error of law, and that the writ of error coram nobis did not lie to correct errors of law, dismissed the petition; it was Held that the order of the court below should be affirmed.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 303, Oct. T., 1963, from order of Court of Quarter Sessions of Lycoming County, May T., 1963, No. 80, in case of Commonwealth ex rel. Nathaniel Firmstone v. David N. Myers, Superintendent. Order affirmed.
Same case in court below: 32 Pa. D. C. 2d 69.
Petition for writ of error coram nobis.
Order entered dismissing petition, opinion by GREEVY, J. Relator appealed.
Nathaniel Firmstone, appellant, in propria persona.
No argument was made nor brief submitted for appellee.
FLOOD, J., filed a dissenting opinion.
Submitted September 11, 1963.
The order of the court below dismissing petition for a writ of error coram nobis is affirmed on the opinion of Judge GREEVY of the Court of Quarter Sessions of Lycoming County, as reported in 32 Pa. D. C. 2d 69.
In my opinion, Garner v. Pennsylvania, 372 U.S. 768, 10 L.ed. 2d 138 (1963) requires that this case be remanded to the court below for further consideration in light of Gideon v. Wainright, 372 U.S. 335, 9 L. ed. 799 (1963).
The facts in the Garner case are set forth in the opinion of President Judge ALESSANDRONI in 26 Pa. D. C. 2d 289 (1961). Garner had been given an indeterminate sentence to White Hill, and had been released from the institution and discharged from parole more than ten years before he filed the petition to vacate the sentence. For this reason the Court of Quarter Sessions held that the question whether he was represented by counsel at the time of his guilty plea was moot, but it nevertheless considered the merits and held that the petitioner was not prejudiced by lack of counsel. The defendant had raised the issue of non-representation by his petition because later, in New York, he had been convicted of a felony and sentenced under a "second felony offender" statute. Averring that he had received a more severe sentence in New York than if he had been a first offender, he sought by this petition to eliminate the earlier Pennsylvania conviction, so as to make him a first offender for purposes of sentence under the New York statute.
While Firmstone, the relator in this case, was represented by counsel when he was sentenced to life imprisonment as a fourth offender following his conviction of the fourth offence, the record before us does not show whether he was represented by counsel, or knowingly and advisedly waived such representation, on the occasions of the three earlier convictions. I see no distinction between the point here at issue and that considered by the United States Supreme Court in Garner v. Pennsylvania, supra, which was remanded by order of that court to the Pennsylvania Supreme Court and by the latter to the Court of Quarter Sessions for further consideration in light of Gideon v. Wainright, supra.