Opinion
April 30, 1941.
Criminal law — Practice — Trial — Representation by counsel — Knowledge of right — Prior record — Delay in making application.
Commonwealth ex rel. Quinn v. Smith, Warden, 144 Pa. Super. 160, held applicable.
Petition for writ of habeas corpus. Original jurisdiction, No. 5 Misc. Docket No. 123, in case of Commonwealth ex rel. Charles Voyanski v. Herbert Smith, Warden, Eastern State Penitentiary et al. Rule discharged and petition denied.
The relator was indicted jointly with Stephen Shain in the Court of Quarter Sessions of Philadelphia County charged with (1) larceny of an automobile (No. 1067 June Sessions, 1930), (2) larceny of gasoline and oil (No. 1066) and (3) operating an automobile without the consent of the owner (No. 1068). Shain pleaded guilty to all three indictments. Relator pleaded not guilty, was tried on July 3, 1930, and found guilty on all three charges. He was sentenced on No. 1067 to imprisonment in the County Prison for not less than two years or more than ten years and was committed the same day. He was not sentenced on the other indictments.
On July 3, 1932 he was paroled.
While on parole he was indicted in the Court of Oyer Terminer of Philadelphia County, charged with robbery from the person (No. 1438 September Sessions, 1935). He pleaded not guilty, but on October 15, 1935 changed his plea to one of "Guilty". He was sentenced the same day to imprisonment in the county prison for not less than two and one-half years nor more than five years from the date of commitment, to wit. October 15, 1935.
On March 19, 1938, having served the minimum of the sentence for robbery, he was paroled, but held in the prison to serve the unserved portion of his maximum sentence for larceny of an automobile.
He was subsequently transferred to the Eastern Penitentiary.
He avers as grounds for his discharge that on the trial at No. 1067 June Sessions 1930, he "did not have counsel; was not represented by counsel; was not informed of his right to have counsel; did not have counsel appointed by the court; and did nothing that would waive his constitutional right to be represented by counsel."
It will be noted that the trial on the indictment to No. 1067 June Sessions 1930 was had nearly eleven years ago and but for his criminal act committed while on parole, not only the minimum but the maximum term of his imprisonment under that sentence would have expired on July 3, 1940.
The district attorney in his answer to the rule granted on relator's petition set forth that no notes of testimony are of record in the case; that there are no endorsements on the bill or notations on his trial sheets as to an attorney representing the relator on said trial; that because of the lapse of time neither the assistant district attorney who tried the case, Clare G. Fenerty, now a judge, nor the trial judge, Honorable HARRY S. McDEVITT, has any recollection as to whether or not the defendant (relator) was represented by counsel, or whether he was advised of his rights to have counsel.
We are of opinion that the foregoing review brings this matter within the scope of our decision in Commonwealth ex rel. Quinn v. Smith, Warden, 144 Pa. Super. 160, 19 A.2d 504, where in somewhat similar circumstances a petition for writ of habeas corpus was denied.
Rule discharged and petition denied.