Commonwealth v. Sheehan

Opinion by

Cercone, J.,

In June 1963 James Sheehan was arrested on, and pleaded guilty to, a charge of driving while under the influence of intoxicating liquor. He was fined and ordered to pay the costs of prosecution.

In September 1968 Sheehan was again arrested and charged with driving while under the influence of intoxicating liquor. He now stands indicted on that charge, his trial being continued pending determination of this appeal from the lower court’s dismissal of his petition under the Post Conviction Hearing Act. In the said petition, Sheehan claimed his first conviction in June 1963 was illegal in that he was not represented by counsel at the time he pleaded guilty or at the time he was sentenced; that if he is convicted on the recent charge, he would automatically be sentenced to a jail term as a second offender even though the first conviction was illegal. The lower court refused to upset the first conviction.

It is our opinion that this petitioner cannot secure relief under the Post Conviction Hearing Act which states that “To be eligible for relief under this act, a person must . . . prove the following: (b) That he is incarcerated in the Commonwealth of Pennsylvania under a sentence of death or imprisonment, or on parole or probation.” Act of January 25, 1966, P. L. (1965) 1580, Sec. 3, 19 P.S. Sec. 1180-3. Sheehan is neither so incarcerated nor on parole or probation.

In Commonwealth v. Garner, 204 Pa. Superior Ct. 227 (1964), this court refused to allow a petition to set aside a judgment which had been fully executed even though petitioner was seeking to erase that former conviction to avoid being sentenced as a second offender by the New York courts on an offense imposed subsequent to the execution of the prior sentence. We there stated:

“Since Garner was discharged from parole in November, 1950, we conclude that Pennsylvania jurisdiction over Garner and over his judgment of sentence terminated at that time. Generally, where a sentence has been fully executed, the power of the court to modify or amend the sentence or to impose a new sentence is gone, whether or not the term has expired. Commonwealth ex rel. Berry v. Tees, 177 Pa. Superior Ct. 126, 110 A. 2d 794 (1955). A court will not proceed to adjudication where there is no subject matter on which the judgment of the court can operate. Parker v. Ellis, 362 U.S. 574, 80 S. Ct. 909, 4 L. Ed. 2d 963 (1960).”

This court then adopted and quoted the dissenting opinion of Mr. Justice Minton in United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247 (1954), as follows :

“The relief being devised here is either wide open to every ex-convict as long as he lives or else it is limited to those who have returned to crime and want the record expunged to lessen a subsequent sentence. Either alternative seems unwarranted to me.

“The important principle that means for redressing deprivations of constitutional rights should be available often clashes with the also important principle that at some point a judgment should become final — that litigation must eventually come to an end. These conflicting principles have traditionally been accommodated in federal criminal cases by permitting collateral attack on a judgment only during the time that punishment under the judgment is being imposed, and Congress has so limited the use of proceedings by motion under 28 U.S.C. §2255, 28 U.S.C.A. §2255. If that is to be changed, Congress should do it.”

In 1966 our Pennsylvania Supreme Court handed down its decision Commonwealth ex rel. Ulmer v. Rundle, 421 Pa. 40 (1966), in which it allowed relief on a habeas corpus petition to a petitioner then serving a sentence the commencement of which had been postponed, until the alleged invalid prior sentence had been completed. Petitioner there claimed the prior sentence to be invalid because he was not represented by counsel during the proceedings and, therefore, his sentence on the subsequent offense should be calculated as of the date of imposition thereof and not as of the date he finished serving the first sentence. Our Supreme Court agreed, saying: “Ulmer is legally entitled to seek relief from imprisonment beyond tbe correct expiration date of the lawful sentences imposed, and habeas corpus is the only available remedy to obtain it.”

In Commonwealth ex rel. Ackerman v. Russell, 209 Pa. Superior Ct. 467 (1967), petitioner at the time of his filing of a petition under the Post Conviction Hearing Act was serving a sentence imposed subsequently to that which he contended was invalid. This court did not find any waiver arising from petitioner’s failure to raise the issues in previous proceedings filed by him, and we held that the Ulmer decision impliedly overruled the longstanding rule that a sentence which has expired cannot be attacked.

We would limit the effect of the Ulmer and Ackerman decisions to the fact situation present in both, that is, where there is a subsequent sentence imposed while the invalid sentence is being served and petitioner wishes credit toward the subsequent sentence for the time served on the invalid sentence. It is our opinion that the Ulmer and Ackerman decisions do not apply to this case before us in which there is a hiatus between the executed alleged invalid sentence and the imposition of the subsequent sentence. As already reasoned by this court in Commonwealth v. Garner, supra, at some point a judgment should become final — litigation must eventually come to an end.

Order affirmed.