Com. ex rel. Gant v. Banmiller

• Decision Date: 15 June 1961
• Parties: COMMONWEALTH of Pennsylvania ex rel. John W. GANT, Appellant, v. William J. BANMILLER, Warden, Eastern State Penitentiary.
• Court: Pennsylvania Superior Court

171 A.2d 603

195 Pa.Super. 417

COMMONWEALTH of Pennsylvania ex rel. John W. GANT, Appellant, v. William J. BANMILLER, Warden, Eastern State Penitentiary.

Superior Court of Pennsylvania.

June 15, 1961.

John W. Gant, in pro. per.

John F. Hassett, Arlen Specter, Paul M. Chalfin, Asst. Dist Attys., James C. Crumlish, Jr., Dist. Atty., Philadelphia for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

RHODES, President Judge.

Relator has appealed from the order of Judge Waters dismissing his petition for writ of habeas corpus. On September 28, 1948 relator pleaded guilty to bills of indictment charging the commission of seventeen burglaries and related offenses. On January 13, 1949, sentence was suspended on all bills except at No. 838, September Term, 1948, on which bill he was sentenced by Judge McDevitt to serve a term of not less than ten years nor more than twenty years in the Eastern State Penitentiary, now the State Correctional Institution at Philadelphia.

Relator's first petition for writ of habeas corpus was dismissed. His appeal to this Court, No. 172, October Term, 1960, taken more than a year later, was quashed as not having been taken within the statutory limit. His petition for allocatur to the Supreme Court of Pennsylvania, No. 115A, Miscellaneous Docket No. 12, was denied also as filed beyond the period fixed by statute.

In the present petition relator states that he was arrested in Brooklyn, New York, and returned to Philadelphia to stand trial on burglary charges. The instant petition alleges further that relator was not given a magistrate's hearing; that he was not advised of his rights in extradition proceedings; that there was a lack of counsel in New York and that he was detained on his return to Philadelphia in a police station for seventy-two hours. It is settled that questions of the sufficiency and regularity of proceedings prior to indictment cannot be raised by a petition for a writ of habeas corpus (Com. ex rel. Ketter v. Day, 181 Pa.Super. 271, 273, 124 A.2d 163) unless the relator can show that the alleged irregularities caused the failure of due process (Com. ex rel. Spader v. Myers, 187 Pa.Super. 654, 658, 145 A.2d 870).

Even if relator had been brought into Pennsylvania without extradition proceedings, he has no standing to question the jurisdiction of the Pennsylvania court to accept a plea of guilty to an indictment regularly found charging crimes committed in this state. Com. ex rel. Patton v. Tees, 179 Pa.Super. 605, 608, 118 A.2d 585.

The main contention of relator's petition is that he was not represented by counsel at the trial and upon his plea of guilty to the burglary charges. A review of the record does not show any assertion of innocence by relator, or a...