Opinion
September 13, 1961.
November 16, 1961.
Criminal Law — Practice — Habeas corpus — Plea of guilty — Allegations — Arrest without warrant — Preliminary hearing — Return of money due victim — Fraudulent conversion and cheating by false pretences — Expression of opinion by "trial" judge — Misconduct of counsel — Testimony of complainant not mentally capable — Refusal of withdrawal of plea — Constitutionality of act — Sufficiency of evidence — Composition of sentencing court — Double jeopardy.
In a habeas corpus proceeding, in which it appeared that petitioner pleaded guilty to an indictment charging him with fraudulent conversion and cheating by false pretense; that imposition of sentence was first suspended and petitioner placed on probation, but after the court was advised of petitioner's violations of his probation and of his extensive prior record (which he had falsely concealed), petitioner was sentenced to the Eastern Diagnostic and Classification Center, which sentence subsequently was corrected in order that petitioner serve his term in the county prison; and that petitioner contended that (1) he was denied due process in that he was arrested without a warrant and was not afforded a hearing until thirty-nine days thereafter (which allegations were contradicted by the transcript), (2) the indictment was defective in that the money involved was found by the police after petitioner had obtained it and returned to the victim, (3) the "trial" judge expressed a personal opinion on the weight of the evidence, (4) petitioner's counsel (of his own choosing) intimidated petitioner, had him plead guilty to a "deal" and thereafter did not enter "exceptions to the charge" or file a motion in arrest of judgment, (5) complainant gave testimony (possibly at the aldermanic hearing) although she was not mentally capable, (6) the court below refused to permit petitioner to withdraw his plea of guilty after imposition of sentence, (7) the act upon which the prosecution was based is unconstitutional (which contention was not presented nor argued in the court below), (8) the evidence presented was inadequate, (9) the sentencing court was improperly constituted since only one judge, rather than three judges, presided, and (10) petitioner was placed in double jeopardy in that he was twice sentenced by the court below on the same charge; it was Held that the order of the court below discharging the rule should be affirmed.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 303, Oct. T., 1961, from order of Court of Common Pleas of Northampton County, Nov. T., 1960, No. 151, in case of Commonwealth ex rel. John D. Carr v. Thomas Ceraul, Warden. Order affirmed.
Same case in court below: 25 Pa. D. C. 2d 312.
Habeas corpus.
Order entered discharging rule, opinion by PALMER, J. Relator appealed.
John D. Carr, appellant, in propria persona.
Russell Kowalyshyn, Assistant District Attorney, and Andrew L. Herster, Jr., District Attorney, for appellee.
Submitted September 13, 1961.
The order of the court below is affirmed on the opinion of Judge PALMER of the Court of Common Pleas of Northampton County, as reported in 25 Pa. D. C. 2d 312.