Opinion
March 19, 1963.
April 18, 1963.
Criminal Law — Practice — Habeas corpus — Allegations of petitioner — Conviction of "use of drugs" — Sentence — Indefinite sentence — Excessiveness of sentence — Discretion of trial court — Act of July 11, 1917, P.L. 758, as amended June 19, 1953, P.L. 290, and June 19, 1911, P.L. 1055, as amended September 26, 1951, P.L. 1460.
In a habeas corpus proceeding, in which it appeared that petitioner alleged that his sentence of 2 1/2 to 5 years for "use of drugs" was illegal in that (a) the Act of July 11, 1917, P.L. 758, § 5, did not concern itself with "use of drugs", (b) the court had no power to impose an indefinite sentence, and (c) the sentence in question for his first conviction was excessive; and that the court below, holding that (a) petitioner had been charged with violation of § 5 of the Act of 1917, had pleaded guilty, and for this violation had been properly sentenced in accordance with § 12 of the Act of 1917, as amended by the Act of June 19, 1953, P.L. 290, § 1, that (b) under the Act of June 19, 1911, P.L. 1055, § 6, as amended by the Act of September 26, 1951, P.L. 1460, the court was invested with power to pronounce an indefinite or indeterminate sentence, and that (c) § 12 of the Act of 1917, as amended, limited the sentence to not more than five years at the discretion of the court but did not require something less than five years for a first offense, and, in the circumstances of the instant case, the court had not abused its discretion, 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. 39, Oct. T., 1963, from order of Court of Common Pleas of Delaware County, Sept. T., 1962, No. 913, in case of Commonwealth ex rel. Richard Hicks v. David N. Myers, Superintendent. Order affirmed.
Same case in court below: 29 Pa. D. C. 2d 554.
Habeas corpus.
Order entered dismissing petition, opinion by TOAL, J. Relator appealed.
Richard Hicks, appellant, in propria persona.
Anna R. Iwachiw, Assistant District Attorney, Ralph B. D'Iorio, First Assistant District Attorney, and Jacques H. Fox, District Attorney, for appellee.
Submitted March 19, 1963.
The order of the court below dismissing petition for writ of habeas corpus is affirmed on the opinion of Judge WM. R. TOAL of the Court of Common Pleas No. 2 of Delaware County, as reported in 29 Pa. D. C. 2d 554.