Commonwealth v. Carr
Commonwealth v. Carr
Opinion of the Court
In a jury trial held on May 14, 1970, appellant was found guilty under The Penal Code
“The scope of what is patently frivolous is delineated by reference to what it is not. Section 9 of the PCHA states that ‘[i]f a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing . . . .’ ” Commonwealth v. Laboy, 460 Pa.
466, 470, 333 A.2d 868, 869 (1975).
Instantly, appellant’s complaint relates to an incident which occurred during sentencing on October 10, 1971. Judge Caldwell, the presiding judge at the sentencing by reason of the unavailability of Judge Shelley, the trial judge, indicated in passing sentence that he had reviewed the transcript of the trial and found little or no mitigating evidence. He further noted that appellant had twice been convicted for robbery. This latter statement by the judge was in fact an erroneous reading of the sentencing report in that appellant’s two prior convictions had been for burglary. Appellant’s counsel failed to bring this error to the attention of the court, and this omission by counsel serves as the basis of appellant’s claim of ineffectiveness.
In spite of this failure by trial counsel, we agree that appellant’s claim was frivolous, and that the court below did not err in denying appellant’s petition in lieu of a hearing. We deem this result particularly appropriate since the PCHA petition was reviewed by Judge Caldwell who stated in denying the petition, “the sentence imposed was fully supported and justified by the seriousness of the crime committed by defendant and the information available to the court concerning petitioner.”
Appellant contends, however, that the error of the judge was of a serious nature and may have influenced the sentence ultimately imposed. In support of this proposition, appellant cites United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), Commonwealth v. Conner, 462 Pa. 282, 341 A.2d 81 (1975), and Commonwealth v.
The mere státement of those cases indicates that they are not dispositive of the instant proceeding. In contrast to Tucker in which two out of three of the defendant’s prior convictions were defective, or Conner in which the court took cognizance of four infirm convictions, or Hewlett in which the defendant’s only prior conviction was considered in imposing sentence, the error of the court below was not of such monumental proportions. See also Commonwealth v. Calvert, 463 Pa. 211, 344 A.2d 797 (1975) (court considered thirty-two prior infirm convictions).
The concern of Judge Caldwell in imposing sentence was that appellant had previously been convicted of two serious offenses. Instead of the prior convictions being for robbery, which constitutes a felony punishable by either ten or twenty years imprisonment,
Order of the lower court affirmed.
. Act of June 24, 1939, P.L. 872, §§ 101 et seq., 18 P.S. §§ 4101 et seq., repealed, Act of Dec. 6, 1972, P.L. 1482, § 5.
. Id. at § 705, 18 P.S. § 4705.
. Id. at § 807, 18 P.S. § 4807.
. Id. at §§ 704, 705, 18 P.S. §§ 4704, 4705.
. Id. at § 901, 18 P.S. § 4901.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.