Summary
In Commonwealth ex rel. Gaynor v. Maroney, 199 Pa. Super. 81, 184 A.2d 409, the Superior Court affirmed the principle that has long been in effect in Pennsylvania which is that the Court which imposed the sentence has the power to reconsider the original sentence and change it so long as the change is made during the same term of Court and it is of no consequence that this petitioner had served five days of his original sentence.
Summary of this case from United States v. Commonwealth of PennsylvaniaOpinion
June 14, 1962.
September 13, 1962.
Criminal Law — Practice — Habeas corpus — Substitute for appeal — Duplicity or repugnancy of indictments.
1. Habeas corpus may not be used as a substitute for appeal.
2. The duplicity or repugnancy of indictments is a matter for disposition at trial or on appeal, not habeas corpus.
Criminal Law — Sentence — Resentencing within term — Imposition of sentence upon charge as to which sentence had theretofore been suspended — Defendant already committed and serving original sentence.
3. It is within the power of the court to reconsider sentences it has imposed and to either increase or reduce them in penalty or severity so long as the term during which the original sentences were imposed has not expired.
4. The power of the court to resentence within the term includes the power to impose a sentence upon a charge as to which sentence has theretofore been suspended.
5. The power of the court to alter its sentence continues throughout the term so long as it has not been fully executed, and the time of commitment or the fact that part of an original sentence has been served is immaterial.
6. In this case, in which it appeared that after conviction the court sentenced defendant on two bills charging cheating by false pretenses and suspended sentences on two bills charging larceny; and that subsequently, within the same term, after revoking its prior sentences, the court imposed sentences on the bills charging larceny and suspended sentences on the bills charging cheating by false pretense; relator's contention, that before he was resentenced he had been committed and had served part of the term under the original sentence, and therefore the power of the court to reconsider had terminated, was Held to be without merit.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 171, Oct. T., 1962, from order of Court of Common Pleas of Delaware County, Dec. T., 1961, No. 705, in case of Commonwealth ex rel. Gus Gaynor v. James F. Maroney, Superintendent. Order affirmed.
Habeas corpus.
Order entered refusing petition, opinion by TOAL, J. Relator appealed.
Gus Gaynor, appellant, in propria persona.
Ernest L. Green, Assistant District Attorney, for appellee.
Submitted June 14, 1962.
In this habeas corpus proceeding appellant questions the legality of his sentences, but seeks also to question the validity of his conviction by raising questions as to the admission of evidence and its sufficiency.
We shall consider only the matter of his sentences since habeas corpus may not be used as a substitute for appeal. Commonwealth ex rel. Williams v. Myers, 193 Pa. Super. 110, 162 A.2d 419.
Having been found guilty on two bills of indictment charging "Cheating by False Pretense" and two bills charging "Larceny", appellant was sentenced to the Delaware County Prison on the two bills charging "Cheating by False Pretense" (bills 373 and 374). Sentence was suspended on the other two bills (375 and 376) charging "Larceny". Subsequently, within the same term of court, the appellant was summoned before the court and appeared without counsel. On that occasion, after revoking its prior sentences, the court imposed sentences to the penitentiary on bills 375 and 376, and suspended sentences on 373 and 374.
It was within the power of the lower court to reconsider the original sentences it had imposed and to either reduce or increase them in penalty or severity so long as the term during which the original sentence was imposed had not expired. Commonwealth ex rel. Paylor v. Cavell, 185 Pa. Super. 176, 138 A.2d 246, cert. den. 358 U.S. 854, 79 S. Ct. 84, 3 L. Ed. 2d 88. This included the power to impose a sentence upon a charge as to which sentence had theretofore been suspended. 11 P.L.E., Criminal Law, § 645.
Appellant contends, however, that this power terminated upon his commitment on and the commencement of his original sentences, regardless of the term of court having ended or not; and alleges that before he was resentenced he had been committed and had served part of the term under the original sentence. His statement of law appears to be the general rule, 15 Am. Jur., Criminal Law, §§ 473, 474, although the question as to when a commitment begins creates differences in its application. However, in the absence of a brief from the prosecution, and any other information to the contrary, we may reasonably assume that appellant's statement is correct and that he had been serving his original sentences in the Delaware County Prison for thirty days before he was resentenced.
As we review our decisions under Pennsylvania law, the time of commitment or the fact that part of the original sentence had been served is immaterial. The general rule in Pennsylvania is that the power of the court to alter its sentences continues throughout the term so long as they have not been fully executed. Commonwealth ex rel. Berry v. Tees, 177 Pa. Super. 126, 110 A.2d 794. This case is also an answer to appellant's complaint as to the absence of counsel at the time he was resentenced. If counsel was in fact absent, no harm or prejudice is apparent, or alleged (except that counsel might have then raised the questions we are now considering and which are without merit).
Appellant's final complaint relates to the alleged duplicity of the indictments. This question was not raised prior to trial, and there is no prejudice to appellant since he is now serving sentences only for the crimes of larceny. His sentences are in accordance with the law. When two counts of an indictment or two indictments charge the same offense and vary only in degree, or where one is an ingredient of the other, only one sentence is sustainable. Commonwealth ex rel. Sawchak v. Ashe, 169 Pa. Super. 529, 83 A.2d 497, cert. den. 343 U.S. 980, 72 S. Ct. 1080, 96 L. Ed. 1371.
However, the duplicity or repugnancy of indictments are matters for disposition at trial or on appeal, not habeas corpus. Commonwealth v. Evans, 190 Pa. Super. 179, 154 A.2d 57, aff. 399 Pa. 387, 160 A.2d 407, cert. den. 364 U.S. 899, 81 S. Ct. 233, 5 L. Ed. 2d 194, reh. den. 364 U.S. 939, 81 S. Ct. 377, 5 L. Ed. 2d 371. See also Commonwealth v. Grosso, 192 Pa. Super. 513, 162 A.2d 421, aff. 401 Pa. 549, 165 A.2d 73.
There were no facts in dispute in the present matter, consequently no hearing was necessary. Therefore, since there is no merit in appellant's contention as to the law, the order of TOAL, J., dismissing the petition is affirmed.