Com. v. Tinson

• Decision Date: 15 January 1969
• Citation: 433 Pa. 328,249 A.2d 549
• Parties: COMMONWEALTH of Pennsylvania v. Arthur W. TINSON, Appellant.
• Court: Pennsylvania Supreme Court

Page 549

249 A.2d 549

433 Pa. 328

COMMONWEALTH of Pennsylvania v. Arthur W. TINSON, Appellant.

Supreme Court of Pennsylvania.

Jan. 15, 1969.

P. Richard Klein, West Chester, for appellant

Norman J. Pine, Dist. Atty., Joseph R. Polito, Asst. Dist. Atty., West Chester, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

In 1959 appellant entered a plea of guilty to voluntary manslaughter on an indictment charging murder and was sentenced to five-to-twelve years in prison. Appellant was paroled after serving his minimum sentence, but was recommitted in 1966 for parole violations after a parole hearing at which he was not represented by counsel. In December, 1968, appellant's application for parole was denied and he remains incarcerated. Appellant now challenges both his guilty plea as having not been knowingly and intelligently entered and his 1966 recommitment because he did not have counsel at the parole hearing. Relief was denied below after a post-conviction hearing.

Initially it should be noted that appellant also claims that he was denied his right to appeal. However since appellant entered a guilty plea, all claims which he might raise on appeal can be raised in the current collateral proceeding. Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967).

Appellant claims that his guilty plea was not knowingly and intelligently entered because his counsel did not discuss a plea of involuntary manslaughter, and that this was necessary to inform appellant of the nature of his offense and the possible punishments. Cf. Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964). However in this case, appellant was charged with murder and thus a conviction of involuntary manslaughter was not possible. See Commonwealth v. Hardy, 347 Pa. 551, 32 A.2d 767 (1943); Commonwealth v. Mayberry, 290 Pa. 195, 138 A. 686 (1927). Appellant was charged with twice beating the deceased, then finally dumping her out of his car and leaving her in a small clearing where she died. Under this charge, counsel correctly concluded that involuntary manslaughter was not in the case, and of course appellant was in no way prejudiced by not being told about involuntary manslaughter.

We thus conclude that appellant's guilty plea was valid and appellant was thus properly sentenced and committed to prison. The remaining question concerns only the validity of appellant's 1966 recommitment hearing, where appellant, unassisted by counsel, was sent back to prison because of technical parole violations.

The Commonwealth first contends that appellant's claim is not cognizable in a Post Conviction Hearing Act proceeding. Under section 3 of the Act, Act of January 25, 1966, P.L. (1965) 1580, § 3, 19 P.S. § 1180--3, a person is eligible for relief under the act if he proves inter alia: '(c) That his conviction or sentence resulted from * * * (6) The denial of his constitutional right to representation by competent counsel.' Appellant comes within this provision since his claim here is that the part of his sentence that he has served since his recommitment hearing is a result of his not being represented by counsel at that hearing. Thus if we find that appellant does have a right to be represented by counsel at a Parole Board hearing, that right may be claimed in a PCHA proceeding.

Even were this not the case, since strict pleading rules do not apply to writs of habeas corpus, e.g., Commonwealth ex rel. Kennedy v. Mingle, 388 Pa. 54, 130 A.2d 161 (1957), we could treat that part of appellant's petition attacking the constitutionality of the recommitment hearing as a petition for a writ of habeas corpus. Writs of habeas corpus may still be had in cases not covered by the PCHA, cf. Moss v. Com. of Pennsylvania, 257 F.Supp. 643 (M.D.Pa. 1966), so that were this case without the PCHA, habeas corpus relief would be possible in this proceeding.

We believe that it is irrelevant whether appellant appealed from the Parole Board determination. Although at least a limited right of appeal attacking an abuse of the board's discretion would seem allowable, see Commonwealth ex rel. Jones v. Rundle, 33 Pa.Dist. & Co.R.2d 9 (C.P. Dauphin Cty.1963), it cannot be said that appellant waived his claims by failing to appeal, since he did not have counsel to assist him. Cf. Commonwealth v. Storch, 432 Pa. 121, 247 A.2d 562 (1968); Commonwealth v. Mumford, 430 Pa. 451, 243 A.2d 440 (1968); Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968). Thus we reach the merits of appellant's constitutional claim.

We start with the proposition that counsel is 'required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.' Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967). Mempa held that counsel was required at a hearing to have probation revoked and sentence entered, a decision that had been anticipated by this Court three years earlier in Commonwealth ex rel. Remeriez v. Maroney, 415 Pa. 534, 204 A.2d 450 (1964). Subsequent to Mempa, we held in Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805 (1968), that counsel was necessary on the day that sentence was formally pronounced.

The Commonwealth argues that this case is different from cases such as Mempa, Remeriez, and Johnson, because those cases involved 'sentencing,' while here sentencing has already taken place. This distinction is completely untenable. We are helped not at all in determining appellant's constitutional rights by attaching artificial labels to describe the proceeding before us. ¹ Our reply to the Commonwealth's argument here is the same as our reply in Johnson to the argument that the actual sentencing was merely a formality: 'an opportunity was present for action by counsel designed to foster his client's interests and * * * (appellant) therefore had a right to counsel at that time.' 428 Pa. at 217, 236 A.2d at 809.

There is even greater need for counsel here than in the Johnson situation. In Johnson, we reasoned that counsel was necessary because even if the sentencing was for the most part a formality, 'just a few words, if spoken effectively enough' by counsel might have aided ...