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COMMONWEALTH v. WOLFE (09/15/72)

decided: September 15, 1972.

COMMONWEALTH
v.
WOLFE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Franklin County, No. 331 of O. & T. 1968, in case of Commonwealth of Pennsylvania v. Ellsworth Elmer Wolfe.

COUNSEL

Kenneth E. Hankins, Jr., Assistant Public Defender, for appellant.

Edward S. Newlin, Second Assistant District Attorney, and John R. Walker, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.

Author: Per Curiam

[ 222 Pa. Super. Page 270]

The record shows that the court below did not disregard the defendant's contention that some of the convictions appearing in the pre-sentence report were incorrect. Cf. United States v. Weston, 448 F. 2d 626 (9th Cir. 1971). Furthermore, the court below acted reasonably, in view of the circumstances, in imposing the sentences with the explanation that it wanted the defendant to be released on parole as soon as the State Parole Board determines that he evidences rehabilitation.

The appellant requests that if his appeal is unsuccessful there be a remand for disposition of a post-conviction

[ 222 Pa. Super. Page 271]

    hearing petition pending in the court below. We should not assume, without a record or consideration by the court below, that the plea of guilty was involuntary because it was made without the aid of counsel, where the appellant at arraignment had unequivocally taken the position that he did not want counsel.

Judgment of sentence affirmed, without prejudice to the pending post-conviction proceeding.

Disposition

Judgment of sentence vacated, and new ...


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