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COMMONWEALTH v. NIKODEMSKI (09/11/69)

decided: September 11, 1969.

COMMONWEALTH
v.
NIKODEMSKI, APPELLANT



Appeal from order of Court of Common Pleas of Chester County, May T., 1966, No. 144, in case of Commonwealth v. Francis Michael Nikodemski.

COUNSEL

John R. Merrick, Assistant Public Defender, for appellant.

David C. Patten, Assistant District Attorney, and Norman J. Pine, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.

Author: Watkins

[ 215 Pa. Super. Page 350]

This is an appeal by Francis Michael Nikodemski, the defendant-appellant, from the Order of the Court of Common Pleas of Chester County denying relief under the Post Conviction Hearing Act, January 25, 1966, P. L. (1965) 1580, ยง 5, 19 P.S. 1180-5.

The appellant was arrested and charged with the crimes of larceny, pointing a firearm, possession of firearm on June 10, 1966. On October 27, 1967, after first pleading not guilty, he withdrew that plea and entered a plea of guilty to all three indictments.

He was sentenced on the larceny charge to a fine of $100, cost of prosecution, and imprisonment for a period of not less than one year nor more than four years; on the pointing of firearm charge, to pay a fine of $10 and imprisonment for six months to run concurrently with the larceny sentence; and on the possession charge, to pay a fine of $10 and imprisonment for six months to run concurrently with the larceny sentence.

In October, 1968, he filed the Petition for Relief under the Post Conviction Hearing Act, in which he alleged that his plea was wrongfully induced, his constitutional rights abridged and that he did not knowingly and intelligently plead guilty to larceny. After a full hearing, the court below determined that the appellant had not sustained his burden of proof that he did not intelligently and knowingly enter the plea. Com. v. Cushnie, 433 Pa. 131, 249 A.2d 290 (1969); Com. ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968); Com. ex rel. Barnosky v. Maroney, 414 Pa. 161, 199 A.2d 424 (1964).

He is, of course, presumed to know what he is doing and in this case the matter was discussed thoroughly between the appellant and counsel for months before the entering of the plea. Counsel advised him not to

[ 215 Pa. Super. Page 351]

    plead guilty mainly because he felt he would receive a "stiff sentence" on the larceny charge because of his prior record. Counsel so advised him, but he persisted in entering the plea.

The court below said in its opinion: "From the testimony of the attorney who represented the petitioner at the time of sentencing it may be found that he went over the charge of larceny with the petitioner very thoroughly and told him that it was his opinion that the charge could not be sustained. Counsel explained in his testimony that he felt so strongly upon this point that when petitioner insisted upon going ahead with the plea of guilty he had him sign a statement absolving counsel of any responsibility for the ...


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