Commonwealth v. Sheehan

• Decision Date: 20 December 1971
• Citation: 446 Pa. 35,285 A.2d 465
• Parties: COMMONWEALTH of Pennsylvania v. James SHEEHAN a/k/a James F. Sheehan, Appellant.
• Court: Pennsylvania Supreme Court

285 A.2d 465

446 Pa. 35

COMMONWEALTH of Pennsylvania v. James SHEEHAN a/k/a James F. Sheehan, Appellant.

Supreme Court of Pennsylvania.

December 20, 1971.

Edward Rosenwald (submitted), Philadelphia, for appellant.

Norman J. Pine, Dist. Atty. (submitted), A. Thomas Parke, III, Asst Dist. Atty., West Chester, for appellee.

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

OPINION OF THE COURT

POMEROY Justice.

In 1963 appellant, not represented by counsel, pleaded guilty to driving under the influence of intoxicating liquor in Chester County, Pennsylvania. See Act of April 29, 1959, P.L. 58 § 1037; 75 P.S. § 1037. The penalty imposed was a fine of $200, which appellant subsequently satisfied.

In 1968 appellant was arrested for driving under the influence of intoxicating liquor in Lancaster County, Pennsylvania. Following his indictment, but prior to trial, ^[1] appellant was informed by letter from Judge W. G. Johnstone, Jr. that 'the invariable policy of the Lancaster County Court is to impose a sentence of $200 fine, costs of prosecution, and three months in Lancaster County Prison on all second offenders charged with operating a motor vehicle under the influence of intoxicating liquor.'

Immediately thereafter, appellant filed a petition under the Post Conviction Hearing Act ^[2] in the Chester County Court of Common Pleas, challenging the validity of his 1963 drunken driving conviction, asserting that he had been unconstitutionally denied his right to counsel. That court, without holding a hearing, denied relief. The Superior Court affirmed the denial of relief. Commonwealth v. Sheehan, 216 Pa.Super. 26, 260 A.2d 496 (1969). Judge Hoffman filed a dissenting opinion, joined by Judge Spaulding. We granted allocatur to review the involved issues arising out of this proceeding.

Both the Court of Common Pleas and the Superior Court held appellant to be ineligible for relief because: (a) he did not have the necessary status--i.e., being then incarcerated in Pennsylvania or on parole or probation--to be eligible for relief under § 3 of the Post Conviction Hearing Act ('the Act'); and (b) the issue was moot because appellant had completely satisfied the sentence on his 1963 conviction. ^[3] The Superior Court specifically distinguished Commonwealth ex rel. Ulmer v. Rundle, 421 Pa. 40, 218 A.2d 233 (1966) and Commonwealth ex rel. Ackerman v. Russell, 209 Pa.Super. 467, 228 A.2d 208 (1967), cases holding the doctrine of mootness not applicable Per se to collateral attacks directed to sentences already satisfied. Setting this case apart, in the view of the Superior Court, was the hiatus in point of time between the allegedly invalid sentence already satisfied and the imposition of a subsequent sentence.

Appellant contends that even if this claim is not cognizable under the Act, his petition should be treated as one for a writ of coram nobis or habeas corpus; that the mootness doctrine does not apply to the present case; and that he was unconstitutionally denied counsel at the 1963 guilty plea proceeding.

I. Availability of Writ of Coram Nobis

The Post Conviction Hearing Act provides that to be eligible for relief thereunder a petitioner must be 'incarcerated . . . or on parole or probation.' ^[4] Clearly, appellant has no such status as a result of the 1963 drunken driving conviction. The intent of the Act, however, was not to abolish the common law remedies of habeas corpus and coram nobis, but rather to promulgate an exclusive, well-defined procedure for the presentation of those grievances set forth in the Act by an aggrieved person who is under the duress of punishment, whether in prison or on porale or probation. See United States ex rel. Wakeley v. Pennsylvania, 257 F.Supp. 644 (W.D.Pa.1966); Accord, Moss v. Pennsylvania, 257 F.Supp. 643 (M.D.Pa.1966); U.S. ex rel. Miller v. Russell, 256 F.Supp. 857 (M.D.Pa.1966). All claims previously cognizable on a common law writ, in circumstances not covered by the terms of the Act, may still be litigated by means of the common law writ. Commonwealth v. Tinson, 433 Pa. 328, 331, 249 A.2d 549 (1969). ^[5] Merely because one is not incarcerated, on parole or probation does not Per se preclude a collateral attack on his conviction. Appellant asserts that his petition presents a proper matter for review under the ancient writ of error known as coram nobis. ^[6]

The writ of coram nobis is generally available to challenge the validity of a judgment based on facts not before the court when the judgment was entered. Commonwealth v. Mathews, 356 Pa. 100, 51 A.2d 609 (1947); Commonwealth v. Harris, 351 Pa. 325, 41 A.2d 688 (1945). Although this Court has previously adverted to the limited scope of coram nobis, especially in light of the then burgeoning employment of the writ of habeas corpus, Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 11--12, n.15, 213 A.2d 613 (1965), situations have arisen where the writ was granted. See Commonwealth v. Kurus, 371 Pa. 633, 634--635, 92 A.2d 196 (1952). See also A. Freedman, The Writ of Error Coram Nobis, 3 Temp.L.Q. 365, 372 (1928). See Diggins, Coram Nobis in Pennsylvania, 33 Temp.L.Q. 1 (1959). Moreover, after noting that courts should act by whatever procedural channels appear necessary to do justice when the record makes plain a right to relief, ^[7] the United States Supreme Court in United States v. Morgan, 346 U.S. 502, 505, 74 S.Ct. 247, 98 L.Ed. 248, 253 (1954) held that, on an allegation of the denial of right to counsel, coram nobis would lie to challenge a conviction, the sentence of which had been fully satisfied. The Court laid practicular emphasis on a quotation from 2 Tidd's Practice (4th Am.Ed.) 1136, 1137, which stated that coram nobis is available to cure errors of fact or process. See Commonwealth v. Sheehan, Supra, 216 Pa.Super. at 32, 260 A.2d 496 (dissenting opinion) and cases cited therein. Likewise, the Court in Morgan noted that coran nobis as applied in American jurisdictions had not been confined strictly to matters of fact. The Court's conclusion commends itself to us as an appropriate and salutary application of this ancient writ in the contemporary setting:

'Where it cannot be deduced from the record whether counsel was properly waived, we think, no other remedy being then available and sound reasons existing for failure to seek appropriate earlier relief, this motion in the nature of the extraordinary writ of coram nobis must be heard. . . .' 346 U.S. at 512, 74 S.Ct. at 253.

In sum we hold that appellant's petition under the Act may properly be considered and treated as a petition for a writ of error coram nobis, and that the fact that he is not now incarcerated (or on parol or probation) is not, by itself, a bar to the relief he seeks.

II.

Whether Satisfied Sentence Renders Alleged Invalidity of

Conviction Moot

The issue remains whether the hearing court properly declined to consider appellant's petition on the ground that it presents a moot question. The Supreme Court of Delaware, in Gural v. State, Del., 251 A.2d 344 (1969), has recently stated that there are three prevalent views relating to the doctrine of mootness as applied to sentences already served: (1) the 'traditional' view that satisfaction of the contested sentence, Per se, renders the case moot; (2) the 'liberal' view that the petitioner's interest in clearing his name, Per se, permits review of or attack upon the conviction; and (3) the modified traditional view that the satisfaction of the sentence renders a case moot unless, in consequence of the conviction and sentence, the petitioner suffers collateral legal disabilities or burdens, surviving the satisfaction of the sentence, sufficient to give petitioner standing to attack his conviction. See Annot., 9 A.L.R.3d 462. See generally Postrelease Remedies for Wrongful Conviction, 74 Harv.L.Rev. 1615 (1961); Mootness and Collateral Consequences in Criminal Appeals, 28 U.Chi.L.Rev. 363 (1960--1).

Prior to this Court's decision in Commonwealth ex rel. Ulmer v. Rundle, 421 Pa. 40, 218 A.2d 233 (1966), Pennsylvania followed the so-called traditional rule. Commonwealth v. Garner, 204 Pa.Super. 227, 203 A.2d 333 (1964). The Ulmer decision, however, introduced what we shall here refer to as a 'collateral criminal consequences' rule, which might well be deemed a restricted version of viewpoint (3) in the Delaware formulation described above. The doctrine of mootness was there held not to apply where one could suffer the consequence of having sentences begin and end later than they normally would, had the sentencing court been aware that a previously imposed, but unexpired, sentence was invalid. Although the Superior Court would limit Ulmer to its specific factual setting, i.e., where petitioner is serving a sentence illegally lengthened by and immediately following (thus with no hiatus) an invalid sentence, we think the decision is properly read as allowing an attack on a satisfied sentence which is shown to affect directly any subsequent criminal prosecution or conviction.

Although the present case does not involve a recidivist statute, ^[8] the announced policy of the Court of Common Pleas of Lancaster County is the equivalent. It is clear that should appellant be found guilty of the charge presently pending against him in that county, he will be classed as a second offender and will suffer a harsher penalty, including imprisonment, than would be imposed absent the prior (allegedly invalid) drunken driving conviction. ^[9] Such a result presents the possible collateral criminal consequences which preclude application of the general rule of mootness to the collateral attack on appellant's initial conviction.

III. Right to Counsel in Non-felony Cases

At this juncture,...