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COMMONWEALTH v. HAMZIK (04/16/68)

decided: April 16, 1968.

COMMONWEALTH
v.
HAMZIK, APPELLANT



Appeal from order of Court of Oyer and Terminer of Bucks County, No. 337 of 1965, in case of Commonwealth of Pennsylvania v. Joseph Hamzik.

COUNSEL

Rodney D. Henry, Assistant Defender, and Daniel J. Lawler, Defender, for appellant.

Howard T. Gathright, Assistant District Attorney, and Ward F. Clark, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Bell

[ 429 Pa. Page 490]

This is an appeal from the Order of the Court below refusing appellant's petition under the Post Conviction

[ 429 Pa. Page 491]

Hearing Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. ยง 1180-1, requesting an evidentiary hearing to determine whether or not appellant intelligently withdrew a prior post-conviction petition requesting a new trial and an arrest of judgment, which was entered after a hearing held to determine the degree of murder of which petitioner was guilty.

On May 31, 1966, Joseph Hamzik, the petitioner (appellant herein) entered a plea of guilty to the charge of murder. A hearing, at which petitioner was represented by privately retained counsel, was held May 31 through June 2, 1966, to determine the degree of murder. On August 9, 1966, after considering all the evidence, the Court found defendant-petitioner guilty of murder in the second degree and sentenced him to not less than nine nor more than twenty years. No appropriate motion was filed, and of course no appeal was taken.

On September 29, 1966, petitioner while represented by counsel filed post-trial motions requesting a new trial and an arrest of judgment, and the vacating of the judgment of sentence nunc pro tunc.

Approximately two months later, on November 22, 1966, petitioner while still represented by private counsel, appeared in Court on the hearing of these motions and stated that he wished to withdraw them because he felt that should he be successful and should the Court find him guilty of second degree murder on a new trial it could then impose a sentence of not less than ten years, which would increase his term of minimum sentence one year.

Appellant presently contends that he withdrew his prior petition because he was unnerved and feared receiving a harsher sentence on retrial. This is not a sufficient ground ...


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