Commonwealth ex rel. Withers v. Ashe, Warden

Supreme Court of Pennsylvania1944-10-31No. Miscellaneous Docket, No. 1352

350 Pa. 493

Summary · law.co

Holding. The petition for a writ of habeas corpus is refused. The court affirmed that consecutive sentences for burglary and aggravated assault and battery are lawful, that the absence of counsel at guilty plea does not violate the Constitution absent a request for counsel, and that statutory procedures permitting guilty pleas without traditional indictment satisfy due process.

Graynor Withers, through his wife, sought habeas corpus relief challenging his conviction and sentences. He had been sentenced to consecutive prison terms—five years for burglary and one and a half years for aggravated assault and battery—for offenses committed during the same incident on April 2, 1939. Withers waived grand jury indictment and pleaded guilty to both charges after formally waiving the requirement for a grand jury "true bill."

Withers advanced three grounds for relief. First, he argued that the aggravated assault and battery charge should have merged into the burglary charge because both arose from the same transaction. The court rejected this, holding that since aggravated assault and battery is not a necessary component of burglary, both convictions and consecutive sentences were lawful. Second, Withers contended he lacked counsel when entering his guilty pleas, but the court found no constitutional violation, explaining that Pennsylvania law does not require advance notice that counsel will be appointed unless requested. Third, Withers claimed he could not be sentenced without a grand jury indictment, but the court upheld statutory procedures allowing guilty pleas to be entered on bills of indictment prepared by the district attorney.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether consecutive sentences for crimes arising from the same transaction violate the merger doctrine
Whether an accused has a constitutional right to appointed counsel at guilty plea without advance notice or request
Whether a defendant may be lawfully sentenced after guilty plea without a grand jury indictment

Procedural posture

The case came before the court as a petition for a writ of habeas corpus challenging a lower court's dismissal of the habeas petition on jurisdictional grounds.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Opinion by

Mr. Chief Justice Maxey,

This case came before us by a petition for a writ of habeas corpus, though it is called both a petition for such a writ and an appeal from the action of the Court of Common Pleas of Cambria County dismissing a petition for a writ of habeas corpus. The petition which was filed by the wife of the prisoner, Graynor Withers, sets forth that the Court of Common Pleas of Cambria County “stated it had no jurisdiction in the case inasmuch as Graynor Withers is now a prisoner in the State penitentiary and has release through the State Supreme Court only”.

The chief reason advanced for the writ is that the prisoner was sentenced loth for burglary and for aggravated assault and battery, each offense being committed on April 2, 1939, “about the hour of eleven”. For these respective offenses minimum consecutive sentences of five years and one and a half years imprisonment were imposed by the appropriate courts of Cambria County after the accused had formally waived in writing “the finding of a true bill by the grand inquest” and had pleaded guilty to each offense. It is contended that the offense of aggravated assault and battery merged in the offense of burglary because both offenses were successive steps in the same transaction.

This contention has no merit. We said in Commonwealth ex rel. Moszczynski v. Ashe, Warden, 343 Pa. 102, 104, 21 A. 2d 920: “The true test ... is whether one crime necessarily involves another. . . . When one of two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence for both ” Aggravated assault and battery is not a necessary ingredient of burglary. The two consecutive sentences complained of are not illegal.

The prisoner also complains that he was unlawfully sentenced because he was not represented by counsel when he entered his pleas of guilty. This contention is shown to be devoid of merit by our opinion in Commonwealth ex rel. McGlinn v. Smith, Warden, 344 Pa. 41, 24 A. 2d 1, wherein we said, inter alia (page 48) : “The right guaranteed by the Pennsylvania Constitution (Art. I, sec. 9) of an accused to be “heard by counsel” has never been challenged or abridged in this Commonwealth ; the right of an accused to be supplied with counsel when none is ashed for was never until recent years asserted in this Commonwealth. This court has never countenanced the idea that the accused in a criminal case when the charge is other than murder is being deprived of a constitutional right if he is not informed in advance of his trial that counsel will be assigned him upon request.”

It is also contended in behalf of the prisoner that an accused cannot be legally sentenced for any crime to which he pleads guilty unless he has been indicted for that crime, or in other words, that without an indictment there is no “due process of law”. The answer to that contention is that the Act of April 15, 1907, P. L. 62 (19 P.S., See. 241), as amended by the Act of June 15, 1939, P. L. 400, sec. 1 (Purdon’s 1943 Cumulative Annual Pocket Part, p. 22), provides for the preparation by the district attorney of a “bill of indictment, in the usual form, “. . . and to the entry thereon of the plea of guilty at the request of . . . defendant or defendant’s counsel” and for the imposition of “sentence for the offense set forth therein”. The above acts are constitu tional: Commonwealth v. Francies, 250 Pa. 496, 95 A. 527; Commonwealth ex rel. Jackowski v. Fluck, 147 Pa. Superior Ct. 434, 24 A. 2d 729.

The writ is refused.