Commonwealth v. Doria

335 A.2d 472, 232 Pa. Super. 439, 1975 Pa. Super. LEXIS 1398

• Court: Superior Court of Pennsylvania
• Decided: February 27, 1975
• Docket: Appeal, 1250
• Status: Published

Opinions

Opinion by

Price, J.,

We are here presented with the issue of appellant’s eligibility under the Post Conviction Hearing Act¹ for relief from a conviction of cheating by fraudulent pretenses and fraudulent conversion on May 5, 1960. He was sentenced to a fine of $150.00 on each bill. This conviction was affirmed by this Court. Commonwealth v. Doria, 193 Pa. Superior Ct. 206, 163 A. 2d 918 (1960). Allocatur was refused by the Supreme Court of Pennsylvania.

No further action was taken by appellant until May 30, 1974, when this PCHA petition was filed alleging that the conviction was based solely on perjured evidence; that appellant was denied his right to remain silent at trial; that appellant was denied his right to representation by effective counsel; and that the trial judge was improperly prejudicial. The Commonwealth by its answer denied all allegations but agreed that appellant’s allegations, if proven, warranted relief.

The lower court on June 28, 1974, dismissed the petition without hearing and in support thereof relied upon Commonwealth v. Sheehan, 446 Pa. 35, 285 A. 2d 465 (1971), to hold that appellant’s claims are presently moot. With this conclusion, we agree and therefore will affirm.

The appellant complied with the sentence of the lower court some fourteen years ago and the lower court notes in its opinion that he had never been arrested prior to that conviction or subsequent thereto and that he has never been involved in trouble with the law at any other time in his lifetime.

The Post Conviction Hearing Act provides in its pertinent provisions:

“To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under section 5 and 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 Jan. 25, 1966, P.L. (1965) 1580, §8 (19 P.S. §1180-8).

Clearly, this appellant does not come within the purview of those entitled to relief except for the possibility that the rule known as the “collateral criminal consequences” rule expands appellant’s eligibility for relief.

This rule was first announced in Commonwealth ex rel. Ulmer v. Bundle, 421 Pa. 40, 218 A. 2d 233 (1966), and further defined in Commonwealth v. Sheehan, supra. The Pennsylvania Supreme Court, in Sheehan held:

“. . . The doctrine of mootness was there held [referring to the Ulmer Casé] 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, 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. 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.” [Footnotes omitted] [Emphasis added] 446 Pa. at 42-43, 285 A. 2d at 468-69.

Under the circumstances here presented, appellant’s satisfied sentence does not affect directly any subsequent criminal prosecution or conviction. We recognize the very able arguments of appellant and his counsel, but Sheehan does not, and should not, be extended to speculative subsequent criminal or civil consequences and should be limited to direct criminal consequences. We are aware of some United States Supreme Court cases that, by dicta, have discussed the possibility of either civil or criminal collateral consequences foreclosing application of the mootness doctrine,² but to this date such a holding has not been made. And to our view, such an extension should not be made.

The order of the lower court is affirmed.

1 . Act of January 25, 1966, P.L. (1965) 1580, §1 et seq. (19 P.S. § 1180-1).

2 . Street v. New York, 394 U.S. 576 (1969); Sibron v. New York, 392 U. S. 40 (1968); Carafas v. LaVallee, 391 U.S. 234 (1968).