Opinion
March 19, 1953.
April 14, 1953.
Criminal law — Habeas corpus — Substitute for new trial motion or appeal — Due process — Refusal of continuance — Opportunity to select counsel — Charge to jury — Notes of testimony — Necessity of hearing.
1. A writ of habeas corpus is not a substitute for a new trial motion or for an appeal.
2. In a habeas corpus proceeding, in which relator contended that he was deprived of a fair trial in that (a) the trial judge had refused to grant a continuance, which prevented relator from securing counsel of his own choice, (b) the trial judge did not charge the jury in an impartial manner, and (c) no notes of testimony were taken, it was Held that (1) the reasons advanced did not support relator's application and (2) in any event it did not appear that relator's conviction was a violation of due process.
3. It is not necessary for the court to grant a hearing to a petitioner for a writ of habeas corpus where the allegations of the petition are fully refuted by the trial or court records.
Criminal law — Sentence — Parole — Crime committed during parole — Service of remainder of original sentence — Change of sentence.
4. Where a paroled convict during his parole commits a crime punishable by imprisonment, he is required to serve the remainder of the term which he would have been compelled to serve but for the parole, and the resulting extension of the expiration date of the maximum term of his original sentence does not constitute a change in such sentence.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, GUNTHER and WRIGHT, JJ.
Appeal, No. 75, Oct. T., 1953, from order of Court of Common Pleas of Berks County, Nov. T., 1952, No. 102, in case of Commonwealth of Pennsylvania ex rel. Ernest Reynolds v. C.J. Burke, Warden, Eastern State Penitentiary. Order affirmed.
Habeas corpus proceeding.
Order entered discharging rule, opinion by HESS, J. Relator appealed.
Ernest Reynolds, appellant, in propria persona, submitted a brief.
Henry M. Koch, District Attorney, and Edward Youngerman, Assistant District Attorney, for appellee, submitted a brief.
Submitted March 19, 1953.
Appellant was charged with larceny, burglary, armed robbery, and other crimes in seven bills of indictment. He was convicted by a jury, and sentenced on March 12, 1936, to serve not less than ten nor more than twenty years in the Eastern State Penitentiary. On December 25, 1945, appellant was paroled. During the period of his parole, he was sentenced (March 6, 1952) on a charge of forgery to serve not less than one nor more than two years. The present appeal is from the order of the Court of Common Pleas of Berks County discharging his rule to show cause why a writ of habeas corpus should not issue.
Appellant's complaints relate to the conviction in 1936. His first contention is that he was deprived of a fair trial in that (a) the trial judge refused to grant a continuance, which prevented appellant from securing counsel of his own choice; (b) the trial judge did not charge the jury in an impartial manner; (c) no notes of testimony were taken. Appellant's second contention is that his sentence has been unlawfully changed.
So far as appellant's first contention is concerned, the reasons advanced do not support his application. A writ of habeas corpus is not a substitute for a new trial motion or for an appeal: Com. ex rel. Carey v. Prison Keeper, 370 Pa. 604. In any event it does not appear that appellant's conviction was a violation of due process. He was represented at the trial by counsel appointed by the court, to whom Judge HESS of the court below refers as an able and experienced lawyer. No allegation is made that counsel failed to fully protect appellant's interests. The purported instruction by the trial judge of which appellant complains was in no way prejudicial. Appellant does not allege that a court reporter was requested at the trial and his demand for notes of testimony was not made until September 12, 1952, long after the appeal period had expired.
Finally, it does not appear that appellant's sentence has been changed. His conviction while on parole has resulted merely in the extension of the expiration date of his maximum term. This is in accordance with well established law: Com. ex rel. Carmelo v. Burke, 168 Pa. Super. 109. Under the circumstances it was not necessary for the lower court to grant appellant a hearing, and the rule was properly discharged: Com. ex rel. Chambers v. Claudy, 171 Pa. Super. 115, 117.
The order of the court below is affirmed.