Appeal from judgment of sentence of Court of Common Pleas of York County, Jan. T., 1973, Nos. 187, 189, 190, 191, 198, 328, and 411, in case of Commonwealth of Pennsylvania v. John Robert Sutherland, Jr.
William H. Naugle, with him Naugle & Sullivan, for appellant.
Morrison B. Williams, Assistant District Attorney, with him Donald L. Reihart, District Attorney, for Commonwealth, appellee.
Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.
[ 234 Pa. Super. Page 521]
Appellant contends that the lower court erred in not allowing him to withdraw his guilty plea, because the trial judge did not concur in the sentence recommended by the Assistant District Attorney.
On December 19, 1972, appellant was indicted by the York County Grand Jury on charges of burglary, larceny, receiving stolen goods, and forgery. On April 10, 1973, appellant, his counsel, and the Assistant District Attorney reached an agreement, a summary of which was reduced to writing. Under the terms of the bargain, appellant agreed to plead guilty. In return, the Commonwealth agreed to continue bail, to request that sentencing be
[ 234 Pa. Super. Page 522]
deferred until August, 1973, and to recommend that appellant receive an indefinite term at Camp Hill. The existence and terms of the plea bargain were made known to the court.
The trial judge conducted a lengthy colloquy to ensure that appellant's guilty plea was made knowingly and voluntarily. The court also explained to appellant that he would accept the plea bargain, but that the court was not bound by the District Attorney's recommendation as to sentence. The court deferred sentencing until August 27, 1973. On August 24, 1973, appellant asked to withdraw his guilty plea. The court directed that a formal written petition be prepared and appellant did so on September 27, 1973. At that time, a hearing was set for November 7, 1973. After receiving evidence, the court concluded that the guilty plea was voluntarily and knowingly made, and that all of the terms of the plea bargain had been kept. On November 13, 1973, appellant was sentenced to concurrent terms of five to ten years' imprisonment, to be followed by concurrent terms of one and one-half to three years' imprisonment.*fn1
Appellant retained private counsel to take an appeal to this Court. Although counsel accepted a fee, he failed to file briefs or request extensions of time. Consequently, this Court nolle prossed the appeal on June 7, 1974. On August 14, 1974, appellant filed a PCHA petition, alleging that the court erroneously denied his petition to withdraw guilty plea and that his appellate counsel was ineffective. After a hearing, the PCHA court held that appellant had been denied effective assistance of counsel on appeal, but otherwise denied relief. Thus, the lower court granted
[ 234 Pa. Super. Page 523]
appellant the right to direct appeal of the trial court's refusal to allow appellant ...