dissenting.
Even upon the narrow view to which a majority of this Court adhere concerning the scope of the right to counsel *733in criminal cases, as guaranteed by the Fourteenth Amendment’s requirement of due process of law, I cannot square the decision in this case with that made in Townsend v. Burke, post, p. 736, decided today.
The opinion in that case declares that “the disadvantage from absence of counsel, when aggravated by circumstances showing that it resulted in the prisoner actually being taken advantage of, or prejudiced, does make out a case of violation of due process.” In this view the Court finds that Townsend was prejudiced by the trial court’s action in sentencing him on the basis either of misinformation submitted to it concerning his prior criminal record or by its misreading of the record and carelessness in that respect. On the same basis Gryger’s sentence was invalid, although the Court finds no such exceptional circumstances here inducing prejudice as it finds in Townsend’s case.
The record, in my judgment, does reveal such a circumstance, one working to induce prejudice at exactly the same point as with Townsend, namely, upon the critical question of sentence. So far as the record reveals, Gryger was sentenced to life imprisonment by a court working under the misconception that a life term was mandatory, not discretionary, under the Pennsylvania Habitual Criminal Act.1
Exactly the opposite is true. In explicit terms the statute puts imposition of life imprisonment upon fourth offenders “in the discretion of the judge.” 2 Moreover, *734appeal of the sentence is authorized “not only as to alleged legal errors but also as to the justice thereof,” with the costs of appeal and reasonable counsel fee to be paid by the Commonwealth.3
In spite of his discretion and duty to exercise it, the sentencing judge, remarking that the only question was whether petitioner was the same person who had suffered the prior convictions, repeatedly spoke as if the life sentence were mandatory. The statements quoted in the margin are typical.4
It is immaterial that the same sentence might or probably would have been imposed in an exercise of the court’s discretion. Petitioner was entitled to have sentence pronounced in that manner, not as an automatic mandate of statute. The denial of the very essence of the judicial process, which is the exercise of discretion where discretion is required, is in itself a denial of due process, not merely an error of state law of no concern to this Court. And we cannot speculate whether the same sentence would have been pronounced if the court’s discretion had been exercised.
Moreover, the court’s misconception, together with the absence of counsel, deprived the petitioner of any chance *735to be heard on the crucial question of sentence, the only matter left for hearing and the vital one after his plea of guilty was received. Even if it could be assumed, as the Court says, that he knew of his right to counsel from his frequent prior appearances in court,5 still it cannot be assumed, indeed the record substantially disproves, that he knew the exact terms of the Habitual Criminal Act.6 He therefore, misled it would seem by the court’s language giving no hint of its discretionary power, made no plea in mitigation and had no representative to correct the court’s misconception or to present considerations which might have induced a sentence less severe than the one pronounced. To paraphrase the concluding sentence of the opinion in the Townsend case, “Counsel might not have changed the sentence, but he could have taken steps to *736see that the sentence was not predicated on misconception or misreading of the controlling statute, a requirement of fair play which absence of counsel withheld from this prisoner.”
I find it difficult to comprehend that the court’s misreading or misinformation concerning the facts of record vital to the proper exercise of the sentencing function is prejudicial and deprives the defendant of due process of law, but its misreading or misconception of the controlling statute, in a matter so vital as imposing mandatory sentence or exercising discretion concerning it, has no such effect. Perhaps the difference serves only to illustrate how capricious are the results when the right to counsel is made to depend not upon the mandate of the Constitution, but upon the vagaries of whether judges, the same or different, will regard this incident or that in the course of particular criminal proceedings as prejudicial.
Pa. Stat. Ann. tit. 18, § 5108.
Section 5108 (b) provides that when the prior convictions are shown at the trial for the fourth offense, the defendant “shall, upon conviction ... be sentenced, in the discretion of the judge trying the case, to imprisonment in a state penitentiary for the term of his natural life.”
Section 5108 (d), which authorizes the procedure followed in the instant case, viz, a separate proceeding on an information within *734two years of the fourth conviction, provides that “the court may sentence him to imprisonment for life as prescribed in clause (b) of this section . . . .”
That the statute vests discretion in the sentencing judge has been clearly recognized by the Commonwealth’s highest court. Commonwealth ex rel. Foster v. Ashe, 336 Pa. 238, 240.
§5108 (d).
“. . . it becomes my duty, under the Act of Assembly, to treat such a case, that is to say, where a person has been found guilty the fourth time of a felony within a prescribed period, to impose the sentence required by the Act.”
“In other words, the law has come to this viewpoint: ... [a fourth offender] must be removed from the possibility of ever committing the offense again.”
A dubious assumption, it would seem, in view of the fact that Pennsylvania generally confines the right to have counsel in criminal trials to capital cases. See, e. g., Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41; Commonwealth ex rel. Withers v. Ashe, 350 Pa. 493. Pa. Stat. Ann. tit. 19, § 784. But cf. note 3 and text.
Petitioner, when served with the information charging him as a fourth offender, was confined in the penitentiary without financial means of preparing a defense. He alleged, without contradiction, that the prison authorities refused his request for a copy of the Habitual Criminal Act. It is no answer, of course, to say that petitioner had no need of the statute or other assistance because of his previous trips through the courts. Whatever knowledge of court procedures he may have acquired, he was unfamiliar with the fourth offender act.
Even if petitioner had secured access prior to the hearing to materials needed to prepare a defense, or had been adequately informed by the court as to the statute’s terms and his rights thereunder, it is highly unrealistic to assume that petitioner was capable of adequately presenting his own case at the hearing. The pleadings which he filed are telling witness of his limited intelligence and education. And at the hearing it was so obvious that petitioner was unable to comprehend the issues involved that the assistant district attorney representing the Commonwealth remarked, “He doesn’t understand.”