Commonwealth ex rel. Simon v. Maroney

Opinion by Woodside, J., When 18 years of age, John Simon, the petitioner in this habeas corpus case, raped two young girls and robbed three women, brutally clubbing two of them. He made a hood of overalls, and wore it over his head while committing the crimes. He had previously been in Juvenile Court as a result of his involvement in other serious law violations. He was apprehended, and on June 18, 1942, he was sentenced to a total of 20 to 40 years. Simon had an I.Q. of 59. He was, and is, recognized by the court and prison psychologists and psychiatrists as a potentially dangerous person of high moron intelligence. When sentenced, he was not represented by counsel. The question here is whether he was deprived of due. process of law by the acceptance of his uncounseled plea. The Sixth Amendment to the Federal Constitution requires the assignment of counsel to defendants charged with crime in the federal courts, but neither the federal nor the State constitution requires that counsel be furnished to defendants charged in Pennsylvania courts with noncapital offenses. Commonwealth [616] ex rel. Diggs v. Banmiller, 191 Pa. Superior Ct. 101, 155 A. 2d 402 (1959) ; Commonwealth v. Asher, 181 Pa. Superior Ct. 80, 83, 124 A. 2d 701 (1956) ; Gallegos v. Nebraska, 342 U.S. 55, 72 S. Ct. 141, 96 L. Ed. 86, 94 (1951). There is no lack of due process in the failure to appoint counsel in a noncapital case unless it is established that for want of benefit of counsel an ingredient of unfairness operated in the process that resulted in the prisoner’s sentence. Foster v. Illinois, 332 U.S. 134, 67 S. Ct. 1716, 91 L. Ed 1955, 1958 (1947) ; Commonwealth ex rel. Gant v. Banmiller, 195 Pa. Superior Ct. 417, 171 A. 2d 603 (1961). There is a strong presumption of regularity in a judgment of conviction for crime, and the longer the judgment stands, the stronger the presumption becomes. Commonwealth ex rel. Savage v. Hendrick, 179 Pa. Superior Ct. 601, 603, 118 A. 2d 233 (1955). The burden is upon appellant to prove his case. Commonwealth v. Kadio, 179 Pa. Superior Ct. 196, 199, 115 A. 2d 777 (1955) ; Commonwealth ex rel. Diggs v. Banmiller, supra, 191 Pa. Superior Ct. 101, 155 A. 2d 402 (1959). In determining whether the ingredient of unfairness exists, each case depends on its own facts. Uveges v. Pa., 335 U.S. 437; 69 S. Ct. 184, 93 L. Ed. 127 (1948). “The 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.” Betts v. Brady, 316 U.S. 455, 462, 62 S. Ct. 1252, 1256, 86 L. Ed. 1595, 1602 (1942) ; Commonwealth ex rel. Popovich v. Claudy, 170 Pa. Superior Ct. 482, 486, 487, 87 A. 2d 489 (1952). Youth and inexperience, coupled yúth a serious charge, do not per se establish unfair [617] ness. Commonwealth v. Kadio, supra, 179 Pa. Superior Ct. 196, 199, 115 A. 2d 777 (1955) ; Commonwealth ex rel. Popovich v. Claudy, supra. Nor is the low mentality of the prisoner sufficient to establish an element of unfairness. Commonwealth ex rel. Ringer v. Maroney, 177 Pa. Superior Ct. 509, 110 A. 2d 801 (1955). Simon did not meet the burden of showing a denial of due process. The court found that he had been told that the court would assign him a lawyer and that he had not requested that one be appointed. The record supports these findings. Thus, not only did the petitioner fail to meet the burden, but the evidence, indicates that he knew the court would assign him counsel and that he did not desire counsel. The able sentencing judge showed serious concern for this defendant. He did not impose sentence until a thorough investigation had been made, and a complete report had been received from the Behavior Clinic operating under the direction of the court. We have carefully examined the record of this case and find that prior to sentence the court made every effort to obtain all the relevant information concerning the defendant which could aid in the imposition of a fair sentence. An examination of the record leaves no doubt of the prisoner’s guilt, and that the safety of the prisoner and the public demanded a lengthy imprisonment. President Judge McNaugi-ier, who sentenced the petitioner and heard this habeas corpus case, is known to this Court and to the people of his county as one of the fairest and ablest trial judges of this Commonwealth. In 1952, Simon, represented by counsel, applied for a writ of habeas corpus raising the same question he raises here and was denied the writ. He applied to the Pennsylvania Board of Pardons four times for a commutation of his minimum sentence, and each time, after [618] the thorough independent examination always made by the board, his petition was denied. Three times his petition for commutation was argued by counsel who had extensive experience before the board. Numerous exhibits and over 300 pages of testimony were taken in the habeas corpus hearing now before us. From the day of this petitioner’s arrest to the present time, numerous officials of this Commonwealth have checked and rechecked, investigated and reinvestigated, reviewed and rereviewed,, examined and reexamined every fact and every circumstance of these crimes, and every circumstance of the proceedings in which he pleaded guilty and was sentenced, and every physical, mental and emotional characteristic of the petitioner. Considering the “totality of facts” in this case— the unquestioned guilt of the prisoner, and the endless efforts of the courts and other officials to see that the petitioner was fairly treated and sentenced, — it would be error to release this dangerous prisoner to again prey upon the women and children of our Commonwealth. The courts have a duty to protect helpless people from attack by vicious criminals as well as to protect those persons who are accused of crime. For the above reasons, and for the additional reasons set forth in the opinion of President Judge Mc-Naughek, reported in 24 Pa. D. & C. 2d 377 (1960), the order refusing the writ is Affirmed.