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COMMONWEALTH PENNSYLVANIA v. MARION WALTON GILMORE (10/30/75)

decided: October 30, 1975.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MARION WALTON GILMORE, APPELLANT



COUNSEL

Bruce M. Dolfman, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Bonnie Ledbetter, Asst. Dist. Atty., Mark Sendrow, Asst. Dist. Atty., Asst. Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Manderino, J., filed a dissenting opinion. Pomeroy, J., did not participate in the consideration or decision of this case.

Author: Eagen

[ 465 Pa. Page 203]

OPINION OF THE COURT

On December 8, 1971, while assisted by counsel, the appellant, Marion Walton Gilmore, entered pleas of guilty to two criminal indictments: (1) charging him with conspiracy in connection with the homicide of one Charles Alexander; and (2) charging him with the murder of Alexander. After acceptance of the guilty pleas, an evidentiary hearing ensued to determine the degree of guilt on the murder indictment, and following this Gilmore was adjudged guilty of voluntary manslaughter. On February 28, 1972, the trial court imposed a prison sentence of eleven and one-half to twenty-three months on the conspiracy conviction and a prison sentence of five to ten years on the manslaughter conviction, but immediately stated that this last sentence would be suspended in favor of a ten year term of probation. Such an order of probation was then entered. No motion to withdraw the pleas, nor motion of any nature, was filed in the trial court. Likewise, an appeal was not entered.

[ 465 Pa. Page 204]

On April 9, 1973, Gilmore was found guilty of aggravated robbery, and was sentenced to prison on this conviction for a period of four to ten years. On November 28, 1973, after a counseled hearing, the trial court found Gilmore violated the terms of probation imposed on February 28, 1972, revoked the order of probation and sentenced him to prison for five to ten years on the 1971 manslaughter conviction. This sentence was directed to run concurrently with the prison sentence imposed on the robbery conviction. This appeal then followed.

Gilmore does not now challenge the validity of the revocation proceedings conducted on November 28, 1973, nor the authority or propriety of the court's order revoking its previous order of probation. His attack is directed solely to the validity of the guilty pleas entered on December 8, 1972. He contends these pleas were not knowing and intelligent because at the time the pleas were entered the nature of the charges upon which the indictments were based was not "adequately explained." Cf. Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). Under the circumstances, this issue may not be raised at this late date.

[ 465 Pa. Page 205]

Gilmore does not contend he was denied his Douglas rights of appeal from the order of February 28, 1972, placing him on probation for a period of ten years. Neither does he contest that the knowing failure to appeal from a final judgment of sentence following a plea of guilty to a criminal indictment precludes a subsequent attack on the validity of the guilty plea. But, he says, an order placing a criminal defendant on probation is not a final judgment and, although it is appealable, the defendant is not obliged to appeal until a final judgment is entered and may in an appeal from the final judgment challenge the validity of the conviction from which the probation order flowed. Certain language in Commonwealth ex rel. Paige v. Smith, 130 Pa. Super. 536, 198 A. 812 (1938), quoted with approval by this Court in Commonwealth Page 205} v. Elias, 394 Pa. 639, 149 A.2d 53 (1959), is cited in support of this position.*fn1 In our view, the language cited is misconstrued.

It is true that an order placing a criminal defendant on probation need not be appealed and the failure to so appeal does not preclude a subsequent appeal from the final judgment of sentence imposed following an order revoking the probation. See Commonwealth ex rel. Paige v. Smith, supra, and Commonwealth v. Elias, supra. However, in such an appeal following the final judgment, the review is limited to the validity of the revocation proceedings and the legality of the final judgment of sentence. The knowing failure to appeal from the order of probation constitutes a waiver of the right to challenge the validity of the conviction upon which the probation order is based. As we pointed out in Elias, supra at 643, 149 A.2d at 55, a judgment of sentence may never be imposed on a criminal defendant who is placed on probation and hence, unless such an order is appealable, errors in the trial proceedings would go unreviewed and "become moot." To foreclose such an unfair ...


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