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COMMONWEALTH v. THOMAS (06/22/71)

decided: June 22, 1971.

COMMONWEALTH
v.
THOMAS, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1967, No. 33, in case of Commonwealth of Pennsylvania v. Walter W. Thomas.

COUNSEL

Robert S. Robbins, for appellant.

James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Montgomery

[ 219 Pa. Super. Page 23]

This is an appeal by Walter W. Thomas from an order denying him relief under his P.C.H.A. petition, in which he alleged an involuntary plea of guilty, incompetency of counsel, and invalidity of sentence on one of the charges for the reason that it constitutes double jeopardy.

In 1967 this appellant was indicted as follows: Bill No. 33, unlawful use of narcotics; Bill No. 34, possession

[ 219 Pa. Super. Page 24]

    of burglary tools; and Bill No. 35, burglary of a motor vehicle, larceny, and receiving stolen goods. On November 1, 1967, he pleaded guilty to all bills before Hon. Joseph E. Gold, President Judge, and at that time he was sentenced as follows by the court, who imposed the sentence in these words: "You, Walter Thomas, on Bill No. 33 are sentenced to serve a term not less than one year nor more than three years in the County Prison. Sentence is suspended on bills No. 34 and No. 35." However, the indictments read, over Judge Gold's signature, on Bills Nos. 33 and 34, respectively, "11-1-67 Sentence suspended Sentence on Bill No. 35"; and on Bill No. 35, "11-1-67, Sentence, not less than 1 year nor more than 3 years at separate and solitary confinement in the Philadelphia County Prison. By the Court." On August 26, 1969, appellant filed the subject petition, which was subsequently amended, and the post-conviction hearing was held on April 10, 1970, before Hon. Ethan Allen Doty, Judge. The record was returned to Judge Gold, who, on July 27, 1970, signed an order which reads, ". . . the suspended sentence on Bill No. 33 October Term, 1967, is vacated and a sentence of not less than one year nor more than three years is entered; the sentence of not less than one year nor more than three years on Bill No. 35 October Term, 1967 is vacated and a suspended sentence is entered." Judge Doty denied the petition on August 19, 1970. This appeal followed.

We have examined the transcript of the notes of testimony taken at the post conviction hearing and can find little to support the appellant's contention that his guilty plea was not knowingly and intelligently entered. Even though this is a "silent record" case, for the reason that the plea had been entered prior to the decision in Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968), the burden was on appellant to prove his case, contrary to his contention as

[ 219 Pa. Super. Page 25]

    set forth in his brief, that the burden was on the Commonwealth. Commonwealth v. Lundy, 443 Pa. 8, 275 A.2d 101 (1971). Therefore, on the basis of the record before us, we conclude that the lower court did not err in denying this claim of appellant.

In addition, we conclude that appellant did not prove his contention that his trial counsel was ineffecttive or incompetent. That claim is based on the fact that trial counsel did not note the discrepancy between the oral sentence and the sentence recorded on the indictment and advise appellant of same. Appellant also contends that counsel should have noted the severity of the sentence orally imposed for use of narcotics, i.e., three years, whereas, it is his contention that this is his first offense and, therefore, his sentence could be no more than one year imprisonment. Appellant argues that the sentencing judge, as well as trial counsel, must have erroneously concluded that appellant was being sentenced for possession of narcotic drugs, a felony, the penalty for which is from two to five years imprisonment for the first offense. The Drug, Device and Cosmetic Act of September 26, 1961, P. L. 1664, § 20, as amended, 35 P.S. § 780-20. We cannot accept the latter argument since the record does not disclose whether the present offense is appellant's first conviction or a subsequent conviction. Moreover, since trial counsel at the post conviction hearing testified that his notes of this case disclose the same sentences as are entered on the indictments, the reasonable explanation for the confusion that developed at the sentencing is that counsel simply ...


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