Commonwealth ex rel. Popovich v. Claudy

• Decision Date: 24 March 1952
• Docket Number: 7922
• Citation: 87 A.2d 489,170 Pa.Super. 482
• Parties: COMMONWEALTH et rel. POPOVICH v. CLAUDY, Warden.
• Court: Pennsylvania Superior Court

87 A.2d 489

170 Pa.Super. 482

COMMONWEALTH et rel. POPOVICH v. CLAUDY, Warden.

No. 7922

Superior Court of Pennsylvania

March 24, 1952

Argued November 16, 1951.

Appeal, No. 134, April T., 1951, from order of Court of Common Pleas of Allegheny County, July T., 1951, No. 1249, in case of Commonwealth of Pennsylvania ex rel. Nick Popovich v. Dr. John W. Claudy, Warden, Western State Penitentiary.

Proceeding upon petition of relator for writ of habeas corpus. Before Patterson, P.J.

Order entered discharging rule and dismissing petition, opinion by McNaugher, P.J. Relator appealed.

Robert F. Burkardt, for appellant.

Henry R. Smith, Jr., Assistant District Attorney, with him William S. Rahauser, District Attorney, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

OPINION

RHODES J.

A petition for writ of habeas corpus was filed by relator in the Court of Common Pleas of Allegheny County on April 30, 1951, whereon a rule was granted on the warden of the Western State Penitentiary and the District Attorney of Allegheny County requiring them to show cause why the writ should not issue. Answers were filed. A hearing was held before the late Judge Frank P. Patterson on June 5, 1951, who discharged the rule, denied the writ, and remanded relator to the Western State Penitentiary. On June 15, 1951, relator filed his appeal in this Court.

Relator had pleaded guilty on August 21, 1941, in the Court of Oyer and Terminer of Allegheny County at No. 218, June Sessions 1941, to the charge of burglary, and to the charge of attempted burglary at No. 847, June Sessions, 1941. He was sentenced to the Pennsylvania Industrial School at Camp Hill for an indefinite term. Testimony was taken on the pleas which were endorsed on the indictments and signed by the relator. The age of the relator was seventeen years and eight months at the time.

The petition alleges that the "Court failed to advise Petitioner of his Constitutional Rights to be represented by Counsel," and that "in view of his extreme youth and inexperience" with criminal proceedings the lack of counsel "placed him at a disadvantage which constituted a denial of Due Process under the Fourteenth Amendment to the Federal Constitution." Previous to the commission of the crimes for which relator was sentenced to the reformatory or industrial school on August 21, 1941, he had been in juvenile court on three occasions, once for larceny in 1938, and again in 1939 for burglary. By reason of the latter offense he was committed to Thorn Hill School for boys, where he remained for seventeen months.

On August 14, 1942, relator was paroled from the Pennsylvania Industrial School at Camp Hill. On February 9, 1946, he was returned to that institution for parole violation upon his release from the United States Naval prison at Portsmouth, New Hampshire, where he had been held under sentence. On June 14, 1946, he was transferred to the Western State Penitentiary. See Act of April 28, 1887, P. L. 63, § 10, 61 PS § 495; Act of June 21, 1937, P. L. 1944, § 6, as amended by the Act of March 26, 1945, P. L. 60, 61 PS § 545-6. He was re-paroled from the Western State Penitentiary on June 24, 1949, but he was subsequently returned to the penitentiary after pleading guilty to two charges of forgery upon which sentenceswere suspended.

The minutes of the court in which relator was sentenced on August 21, 1941, do not show that he was represented by counsel or that he was advised of his right to counsel. In disposing of the present case, it is not necessary to rely upon the presumption of regularity that the court discharged its state and federal duties to relator, including those relating to his right, if any, to the assistance of counsel. See Bute v. Illinois, 333 U.S. 640, 671, 672, 68 S.Ct. 763, 92 L.Ed. 986, 1003.

Relator relies solely on his youth and alleged inexperience to establish a denial of due process in the absence of counsel at the time he pleaded guilty to charges of burglary and attempted burglary. He attempted to create an issue of federal due process by adopting in his petition some of the language ^[1] appearing in Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127. In that case the Supreme Court of the United States, in an opinion by Mr. Justice Reed, said (p. 441 of 335 U.S., pp. 131, 132 of 93 L. Ed.): "Where the gravity of the crime and other factors -- such as the age and education of the defendant, the conduct of the court or the prosecuting officials, and the complicated nature of the offense charged and the possible defenses thereto -- render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair, the latter group [members of the Supreme Court of the United States] holds that the accused must have legal assistance under the [Fourteenth] Amendment whether he pleads guilty or elects to stand trial, whether he requests counsel or not."

Relator makes the contention frequently made by those seeking discharge on writs of habeas corpus -- possibly resulting from oversimplification of the Uveges case -- that lack of counsel, if associated with one or more of the factors above mentioned, constitutes per se a denial of due process of law. The Due Process Clause of the Fourteenth Amendment to the Federal Constitution is not susceptible to reduction to any such formula. ^[2]

To invalidate a plea of guilty in noncapital cases by reason of denial of due process arising from failure to provide a prisoner with counsel by the courtsof this Commonwealth, the prisoner must establish that for want of benefit of counsel an ingredient of unfairness actively operated in the process that resulted in his confinement. Foster v Illinois, 332 U.S. 134, 137, 67 S.Ct. 1716, 91 L.Ed. 1955, 1958; Quicksall v. Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188. In determining whether that ingredient exists, each case depends on its own facts. Uveges v. Pennsylvania, supra, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127. As stated in Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595, 1602: "Asserted denial [of due process] is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial." See Com. ex rel. Hovis v. Ashe, 165 Pa.Super. 30, 67 A.2d 770, affirmed 364 Pa. 81, 70 A.2d 630, certiorari denied 339 U.S. 970, 70 S.Ct. 990, 94 L.Ed. 1378. Again, in Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86, 88, 89, Mr. Justice Reed...