Opinion
March 10, 1952.
July 17, 1952.
Criminal law — Sentence — Revocation — Resentence — Adjourned session before first day of succeeding term.
Where it appeared that relator had been sentenced on indictments charging him with burglary and larceny, and that thereafter, after he had escaped from the county jail, he was returned to court and, at an adjourned session of the court held prior to the first day of the term of court next succeeding that term in which he was originally sentenced, the court revoked the original sentences and in lieu thereof imposed increased sentences, it was Held that (1) the adjourned session of court was a part of the term in which the original sentences had been imposed and (2) the term of court not having expired, the court had power to revoke the sentences and to resentence defendant.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.
Appeal, No. 28, March T., 1952, from order of Court of Common Pleas of Adams County, discharging writ of habeas corpus, in case of Commonwealth of Pennsylvania ex rel. John H. Laughman v. Cornelius J. Burke, Warden, Eastern State Penitentiary. Order affirmed.
Habeas corpus proceeding.
The facts are stated in the opinion, by SHEELY, P.J., of the court below, as follows:
The defendant, complying with the Act of May 25, 1951, (Act No. 98), has filed a petition for a writ of habeas corpus alleging that his sentences to the Eastern State Penitentiary on January 15, 1951, by the Court of Oyer and Terminer and General Jail Delivery of Adams County, are illegal and void because the defendant had previously been sentenced for the same offenses on November 25, 1950.
The defendant was before the Court of Oyer and Terminer and General Jail Delivery of Adams County on November 25, 1950, charged to Nos. 3 and 4 November Sessions, 1950, with the crimes of burglary and larceny. Pleas of guilty were entered to both indictments and the defendant was sentenced on each indictment to pay the costs of prosecution and to undergo an imprisonment in the Adams County Jail for a term of not less than six months nor more than twelve months, the two sentences to run concurrently. Thereafter, after the defendant had escaped from the Adams County Jail, he was returned to Court on January 15, 1951, and the Court then entered an order on each case directing "that the sentence of this Court in the above case entered on November 25, 1950, be revoked, the term of Court in which said sentence was imposed not having expired, and in lieu thereof" the Court sentenced the defendant on each indictment to pay the costs of prosecution and to undergo an imprisonment in the Eastern State Penitentiary for not less than eighteen months nor more than thirty-six months, to be computed from September 25, 1950, the two sentences to run concurrently. The defendant was not prosecuted for the jail break.
The defendant, in an elaborate brief, contends that the Court has no power to revoke a sentence and to resentence a defendant after the expiration of the term of court in which the original sentence was imposed. This is a correct statement of the law. The latest expression of the rule appears in Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, 217 (1951), decided June 27, 1951, in which the Court said: "Once the power to sentence has been exercised, in whole or in part, or waived, expressly or by conduct, a court may not thereafter change or modify a sentence except within the term at which it was entered or waived or, where vacated within the term, the power to resentence subsequently has been reserved likewise within the term."
All of the cases referred to by the defendant are cases in which an attempt was made to resentence a defendant or to alter a sentence at a term of court subsequent to the term at which the original sentence was imposed. This is not the situation in the present case. In Adams County there are four terms of court a year designated on the court calendars and provided by Rules of Court, as follows (for the year 1950) : "January Court, 1950, 4th Monday, 23rd day, two weeks; April Court, 4th Monday, 24th day, one week; August Court, 4th Monday, 28th day, one week; November Court, 3rd Monday, 20th day, two weeks; January Court, 1951, 4th Monday, 22nd day, two weeks." The original sentences of November 25, 1950, were imposed during the November Term of Court. The orders of January 15, 1951, revoking the sentences and imposing new sentences, were entered at an adjourned session of court before the beginning of the next succeeding term of court on January 22, 1951. The question here presented is whether the November Term of Court expired on December 4, 1950, two weeks after it began on November 20, 1950, as contended by the defendant, or whether the adjourned session of court held prior to the first day of the next succeeding term of court on January 22, 1951, was a part of the November Term. If the defendant's contention is correct the resentence on January 15, 1951, was invalid.
The "term" of a court is the time prescribed by law within which it may be in session. The "session" of the court is the time of the actual sitting: 1 Standard Pennsylvania Practice 242. Section 58 of the Act of April 14, 1834, P.L. 333 (17 PS 371) provides that a court of oyer and terminer and general jail delivery shall be holden four times annually in every county, at the several times appointed for holding the courts of quarter sessions of the respective county. Section 46 of the same Act (17 PS 351) provides that the court of quarter sessions shall be holden four times in every year and shall commence, unless otherwise specially provided, on the several days appointed for the commencement of the courts of common pleas of the respective county, and "shall continue during the same time, the business depending in the said courts, respectively, shall require it." Section 50 (17 PS 352) provides that the judges of the courts of quarter sessions may hold special sessions when and as often as occasion shall require. Section 12 of the Act of April 22, 1850, P.L. 543 (17 PS 353) provides that it shall and may be lawful for the several courts of quarter sessions, whenever the public business shall require it, to fix adjourned or special courts of quarter sessions for the purpose of trying issues in criminal cases and transacting the other business of such court as if they were regular sessions.
In Commonwealth v. Murphy, 45 Pa. Super. 185, 190 (1911), the precise question here raised was passed upon adversely to the defendant's contention. It was there pointed out that in many counties of the state, as in Adams County, the courts fix the length of their regular terms with reference to the time that will likely be required for the trial or jury cases, with the result that there is an interim between trial terms, and in that interim the courts hold sessions pursuant to adjournments from day to day or from time to time. It was held that the day to which the court is adjourned is to be treated as part of the term, and that "a subsequent day, before the beginning of the next term, to which the court is again regularly adjourned . . . (is to) be treated as part of the term for the purpose of exercising the power under consideration." It was there stated: "There must come a time when this power to reconsider and alter or revoke a sentence must cease, and, by the great weight of authority, it ceases when a new term begins."
In Fisher v. Fisher, 74 Pa. Super. 538, 543 (1920), the question was again considered (with relation to courts of common pleas) and it was there said: "A day to which a court is adjourned is part of the same term at which the adjournment was made: Leib v. Com., 9 Watts 200. `The whole term is considered as but one day; so that the judges may at any time during the term revise their judgments. In the computation of the term, all adjournments are to be included': 3 Bouvier's Dictionary (Rawle's 3d Revision) 3259. A person who has been convicted at a regular term of the criminal court may be sentenced at an adjourned court, and such sentence may be reconsidered, altered [unless complied with: Ex parte Lange, 18 Wallace 163], or revoked, at any adjourned session before the beginning of the next regular term, such adjournments being treated as part of the regular term: Com. v. Murphy, 45 Pa. Super. 185. `The time of commencement of every term is fixed by statute and the end of it by the final adjournment of the court for that term': Bronson v. Schulten, 104 U.S. 410, p. 415, and during that term, — that is, the whole of it, including every session of the court until the commencement of the next term — all judgments, decrees and orders of court, however conclusive in their character are under the control of the court which pronounces them and may be set aside, vacated, modified or annulled by that court: Ibid, p. 415." See Commonwealth v. Hottle, 139 Pa. Super. 128 (1939), for a case in which a sentence was altered after partial compliance.
Except for regular adjournments from time to time the courts would have no power or authority to be in session or to transact business at any time other than the regular terms. As stated in Fisher v. Fisher, supra: "There is no interval or interregnum during which the business of the court is transacted without being referable to some term." In Commonwealth v. Miller, 66 D. . C. 256 (1948), Judge WRIGHT, of Bedford County, said: "A term of court is a continuous matter, notwithstanding the fact that the court may not be in session every day. Until the commencement of the succeeding term, each day of adjourned court is considered a part of the prior term."
January 15, 1951, the date on which the original sentences were revoked and the defendant resentenced, was a regularly designated date for holding an adjourned session of the November term of court, and was the day on which the Grand Jury for the January Term of Court met. Under Section 2 of the Act of March 18, 1875, P.L. 28; as amended by the Act of April 27, 1927, P.L. 420 (17 PS 1351) the judges are authorized to direct that the grand jury for any term of court shall be summoned to meet at such time prior to the holding of said terms as the judges of the said courts shall deem expedient. The meeting of the grand jury on that date did not mark the beginning of a new term of court.
The defendant's sentences having been revoked and new sentences imposed during the term of court to which he was originally sentenced, there is no merit in his petition for a writ of habeas corpus.
AND NOW, September 1, 1951, the defendant's petition for a writ of habeas corpus is denied. An exception is noted on the behalf of the defendant. Costs of this proceeding to be paid by the county of Adams.
Relator appealed.
John H. Laughman, appellant, in propria persona, submitted a brief.
Daniel E. Teeter, District Attorney, for appellee.
Argued March 10, 1952.
The order of the court below denying relator's petition for writ of habeas corpus is affirmed on the opinion of President Judge SHEELY.