74 F.Supp. 846 (E.D.Pa. 1947), Misc. M. 1199, Commonwealth of Pennsylvania ex rel. Billman v. Burke

Docket Nº:Misc. M. 1199
Citation:74 F.Supp. 846
Party Name:Commonwealth of Pennsylvania ex rel. Billman v. Burke
Case Date:November 18, 1947
Court:United States District Courts, 3th Circuit, Eastern District of Pennsylvania

Page 846

74 F.Supp. 846 (E.D.Pa. 1947)




Misc. No. M. 1199.

District Court, E.D. Pennsylvania.

Nov. 18, 1947

Page 847

Herman I. Pollock, of Philadelphia, Pa., for petitioner.

Franklin E. Barr. Asst. Dist. Atty., Philadelphia County, and John E. Stevenson, Deputy Atty. Gen., both of Philadelphia, Pa., for the Commonwealth, for respondent.

FOLLMER, District Judge.

Petitioner was on October 3, 1940, convicted in a state court 1 on a charge of burglary. At his trial and at the time of sentence as originally imposed, he was represented by counsel appointed by the Court. 2 The Court subsequently, on the ground that it had been misinformed by defendant, 3 vacated this sentence. Thereupon, on October 11, 1940, he was resentenced to a longer term. He alleges that counsel was not present at such resentence. He does not contend that he requested the presence of counsel at such resentence. The petitioner here was fully aware of his rights, had previous experience, and was not ignorant of the procedure in criminal courts

A further point, not material to this decision but which I think does call for comment, was raised by the petitioner, namely that the sentence was not actually vacated until after the expiration of the term. A new term of court--October Sessions 1940-- began on October 7, 1940. It appears that on October 4, 1940, the Court made this order, 'Sentence as to Billman reconsidered in open court and held under advisement '. Thereafter, on October 11, 1940, in the next succeeding term, the court formally vacated the sentence imposed on October 3, 1940, and imposed a larger sentence.

The Pennsylvania Superior Court held that the order of October 4, 1940, was, in effect, a vacation of the sentence during the

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term and the subsequent sentence therefore valid. 4

In my opinion this is strictly a Pennsylvania procedural question the determination of which is solely within the jurisdiction of the Pennsylvania State Courts and by no stretch of the imagination involves any question of due process under the Federal Constitution. Incidentally, and purely by way of parenthesis, Rule 45(c) of the new Federal Rules of Criminal Procedure, 18 U.S.C.A.following section 687, abolished the term of Court as a time limitation and in Rule 35 set up a specific time period without regard to term for the taking of any step in a criminal proceeding, thus definitely characterizing the same as procedural.

It has been frequently pointed out that the Sixth Amendment of the Constitution of the United States applies only to trials in federal courts 5 and that as to state courts the due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment. 6 Prosecutions in state courts are not subject to the fixed requirement that counsel must be furnished an indigent defendant in every case whatever the circumstances. 7

The State Law of Pennsylvania would not have required the appointment of counsel in the instant case, even for the trial. The Supreme Court of Pennsylvania in Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A.2d 1, 5, had occasion to examine this question fully and in an able opinion by Justice (now Chief Justice) Maxey, stated that:

'The right guaranteed by the Pennsylvania Constitution, Art. 1, sec. 9, P.S., of an...

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