United States v. Russell
| Decision Date | 25 May 1967 |
| Docket Number | No. 16392.,16392. |
| Citation | 378 F.2d 808 |
| Parties | UNITED STATES of America ex rel. Donald E. STARNER v. Harry E. RUSSELL, Superintendent, State Correctional Institution, Huntingdon, Pennsylvania, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
John B. Fowler, III, Richard C. Snelbaker, Dist. Atty., Cumberland County, Carlisle, Pa., for appellant.
Donald E. Starner, pro se.
Before McLAUGHLIN and GANEY, Circuit Judges, and NEALON, District Judge.
The petitioner herein, Donald E. Starner, was arrested on April 15, 1963, on a criminal information charging the commission of forgery on eight counts and burglary on two counts. A preliminary hearing was held before a Justice of the Peace at which time the petitioner admitted the charges and indicated his desire to plead guilty to all counts. He was later brought before one President Judge Dale F. Shughart of Cumberland County, on felony charges above stated, as well as two additional charges of driving a motor vehicle after suspension of his operator's privileges. The court, determining that the petitioner did not have legal counsel, advised him that it would appoint counsel, but the petitioner advised that he wished to proceed with the case without an attorney and the court then accepted the petitioner's plea of guilty to all charges.
On May 17, 1963, he was sentenced by President Judge Shughart to pay the costs of prosecution and undergo imprisonment for not less than two years or more than six years from April 14, 1963, on the forgery and burglary counts, and sentence on the two driving after suspension charges was suspended generally on his payment of the costs. On December 7, 1963, the petitioner filed a petition for writ of habeas corpus averring violation of his constitutional rights generally and specifically alleging that he was not provided with counsel during the police investigation and pre-court proceedings. After hearing, President Judge Shughart directed that the sentence imposed on the felony and burglary charges be vacated and set aside and the District Attorney instructed to submit an indictment to the Cumberland County Grand Jury to be convened at the May Term, 1964. Bail was fixed at $5,000, and the petitioner advised by the court that it would appoint counsel if he would file the necessary affidavit that he was unable to engage the same. This was done and the court appointed counsel whose appointment was later revoked and petitioner retained his own counsel. On May 5, 1964, the Grand Jury returned true bills of indictment on all eight counts of forgery and two counts of burglary and bail was fixed at $3,000, which petitioner produced, and he was released from custody.
On July 17, 1964, one month after being released on bail, the petitioner was again arrested on crimes committed since his release which included fifteen counts of forgery and two counts of burglary. At the trial of these cases, President Judge Shughart sustained a demurrer to the evidence as to all of them and dismissed the charges.
At the trial of the previous charges, which had been vacated, the petitioner pleaded not guilty, being represented by counsel, and the District Attorney withdrew the two counts of burglary from the case leaving only for the jury's consideration the eight counts of forgery. The next day petitioner was found guilty on all eight counts of forgery and on November 3, 1964, President Judge Shughart directed the petitioner to pay the costs of prosecution, to make restitution and undergo imprisonment for not less than three and one-half nor more than seven years, with credit to be given for time served on the same charge prior thereto less the time the defendant was free on bail.
On or about January 16, 1965, the petitioner forwarded a petition for writ of habeas corpus in the Court of Cumberland County, alleging the sentence imposed was unconstitutional in that it constituted cruel and harsh punishment since it was for less counts in the indictment than the previous indictment to which he had pled guilty and to which he had received a lesser sentence. The Court of Cumberland County having denied the petition, he appealed to the Superior Court of Pennsylvania, which refused the same, and he took an appeal to the Supreme Court of Pennsylvania which, likewise, refused the same, and on September 2, 1966, he submitted his petition for writ of habeas corpus to the United States District Court for the Middle District of Pennsylvania, raising many of the same contentions he had raised in the Pennsylvania courts and which form the basis of the present proceedings. The lower court, upon full hearing and by opinion and order dated November 7, 1966, adjudged the petitioner was illegally detained and discharged him from respondent's custody, staying the execution of the order for thirty days to permit the Commonwealth to seek review of its decision or to resentence the petitioner. The District Attorney of Cumberland County, on November 30, 1966, filed this notice of appeal on behalf of the appellant and the matter is before us now for decision.
The sole issue in this case is the right of a State court to increase punishment following a new trial where the first sentence imposed on the prisoner's plea of guilty is less and vacated on the prisoner's contention that he was denied counsel as required by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799.
The court below held the second sentence to be unconstitutional because of the insufficiency of the sentencing court's reasons for imposing a greater sentence on fewer counts at the trial of the cause before a jury than was given the petitioner on his plea of guilty earlier, citing Patton v. State of North Carolina, D.C., 256 F.Supp. 225. This was error.
As to this, it is submitted, we think the trial court acted properly within the laws of the Commonwealth of Pennsylvania, was confirmed by the Superior Court in Commonwealth v. Davis, 203 Pa. Super. 79, 198 A.2d 649 (1964). Here, the defendant was sentenced in 1945 on a plea to each of four indictments for a term of one to three years, the sentences to be served...
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United States v. Ellenbogen
...F.2d 583 (1 Cir.1967) and Patton v. State of North Carolina, 381 F.2d 636 (4 Cir.1967) (increase illegal) with United States ex rel. Starner v. Russell, 378 F.2d 808 (3 Cir. 1967) (increase legal); and see Note, 80 Harv.L.Rev. 891 ...
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North Carolina v. Pearce Simpson v. Rice
...see Marano v. United States, 374 F.2d 583 (C.A.1st Cir.); United States v. Coke, 404 F.2d 836 (C.A.2d Cir.); United States ex rel. Starner v. Russell, 378 F.2d 808 (C.A.3d Cir.); United States v. White, 382 F.2d 445 (C.A.7th Cir.); Walsh v. United States, 374 F.2d 421 (C.A.9th Cir.); Newman......
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Patton v. State of North Carolina
...as to the severity of the crime."12a Marano v. United States, 374 F.2d 583, 585 (1st Cir. Mar. 23, 1967). Contra, Starner v. Russell, 378 F.2d 808 (3rd Cir. May 25, 1967). An analogy may be drawn between the solution adopted by the Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.C......
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State of Texas v. Grundstrom
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