Opinion
March 17, 1964.
June 23, 1964.
Constitutional Law — Criminal law — Right of defendant to counsel — Plea of guilty — Failure of lower court to make specific findings as to relevant facts — Remanding case for further consideration.
In a habeas corpus proceeding, in which it appeared that petitioner had pleaded guilty to a charge of armed robbery without the assistance of counsel; and that the court below, after a full hearing at which petitioner was represented by counsel, denied his petition on the ground that Gideon v. Wainwright was not retroactive, and made no specific finding on whether the petitioner waived counsel, requested counsel or was unable, because of indigency or otherwise, to obtain counsel; it was Held that the case should be remanded for further consideration in the light of Gideon v. Wainwright and in the light of the opinion of the Superior Court in Commonwealth ex rel. Goodfellow v. Rundle, 203 Pa. Super. 419, as finally determined by the Pennsylvania Supreme Court on certification.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 56, Oct. T., 1964, from order of Court of Common Pleas of Bucks County, May T., 1963, No. 1308, in case of Commonwealth ex rel. Oscar R. Orth v. Alfred T. Rundle, Warden. Remanded.
Habeas corpus.
Order entered dismissing petition, opinion by MONROE, J., dissenting opinion by FULLAM, J. Relator appealed.
Peter A. Glascott, Assistant Defender, for appellant.
Roland E. Sykes, Assistant District Attorney, with him William J. Carlin, District Attorney, for appellee.
Argued March 17, 1964.
This is an appeal from the refusal of the Court of Common Pleas of Bucks County to grant a writ of habeas corpus to Oscar R. Orth, a prisoner in a state correctional institution who had been sentenced on February 4, 1941, to not less than eight nor more than twenty years on a charge of armed robbery. The petitioner had pleaded guilty to the charge without the assistance of counsel.
Because the petitioner was under a sentence of from 2 1/2 years to 5 years for larceny in Philadelphia County, the Bucks County sentence did not commence until July 24, 1943. When the minimum sentence expired on July 24, 1951, the petitioner was paroled. He was recommitted for parole violation on February 2, 1952, reparoled on July 15, 1953, and recommitted for violation of parole on December 11, 1961. The latter violation consisted of an offense in Montgomery County for which the petitioner was tried, convicted and sentenced to undergo imprisonment for a minimum of two years to a maximum of four years, to commence at the expiration of his present confinement, the termination date of which has been set by the Parole Board as July 24, 1973.
The lower court, after a full hearing at which the petitioner was represented by counsel, denied his petition on the ground that Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.ed. 2d 799 (1963), is not retroactive. The hearing judge made no specific finding on whether the petitioner waived counsel, requested counsel or was unable, because of indigency or otherwise, to obtain counsel.
This case will be remanded, as specifically requested in the brief filed with this Court on behalf of the petitioner, "for further consideration in light of Gideon v. Wainwright," and in light of our opinion in Commonwealth ex rel. Goodfellow v. Rundle, 203 Pa. Super. 419, 201 A.2d 615 (1964), as finally determined by the Pennsylvania Supreme Court on our certification.
Remanded.