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COMMONWEALTH PENNSYLVANIA v. LARRY WALBURN (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
LARRY WALBURN, APPELLANT



No. 1582 October Term, 1976, Appeal from the Order of the Court of Common Pleas of Columbia County, Criminal Division, at No. 59 September Term, 1974.

COUNSEL

Michael J. Irey, Berwick, for appellant.

Gailey C. Keller, District Attorney, Bloomsburg, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J. concurs in the result. Van der Voort, J., files a dissenting opinion in which Cercone, J., joins.

Author: Hoffman

[ 249 Pa. Super. Page 462]

Appellant contends that he made an unknowing guilty plea because counsel failed to advise him that he had a meritorious Rule 1100*fn1 claim which would be vindicated on appeal. More specifically, he argues that his Rule 1100 claim was clearly meritorious and that counsel was ineffective in advising appellant to plead guilty. We affirm, however, because at the time appellant entered his pleas of guilty, appellant's substantive Rule 1100 claim was not clearly meritorious.*fn2

[ 249 Pa. Super. Page 463]

On March 3, 1975, appellant filed a Rule 1100 motion. On March 11, the lower court denied the motion because "[t]he Court feels that we had several complicated questions which were presented and included in the petition to suppress, and the Court believes that substantial justice would not be served by acting upon the issues presented in the petition to suppress without deliberation and research. . . ." Trial commenced on the same day. During trial, appellant and his attorney began discussions with the district attorney concerning the possibility of a plea bargain. Apparently, appellant believed that he would be sentenced to as much as 15 years if he were found guilty, and his attorney hoped to bargain for a term of 2 to 4 years' imprisonment. After appellant changed his plea, the lower court sentenced him to a term of imprisonment of three to seven years for possession of a controlled substance with intent to manufacture or deliver. The lower court conducted an extensive colloquy.

Appellant then filed a petition pursuant to the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq.; 19 P.S. § 1180-1 et seq. New counsel was appointed to represent appellant at his September 16, 1975 hearing. The lower court denied the petition on April 6, 1976. This appeal followed.*fn3

[ 249 Pa. Super. Page 464]

Appellant would have us reverse because trial counsel testified at the PCHA hearing that appellant had asked him to file an appeal based on the Commonwealth's failure to try appellant within 180 days, but that counsel had felt that an appeal based on the 180 day rule would be unsuccessful because of Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). No other explanation was given by trial counsel for his failure to pursue the Rule 1100 issue. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Appellant further concludes that counsel's explanation was inadequate. The linchpin of the argument is that the Rule 1100 violation was obviously meritorious and, therefore, counsel had no excuse not to pursue the motion.

However, appellant's plea was made on March 11, 1975. At that time, Pennsylvania appellate courts had not yet decided whether time consumed by pretrial litigation could be automatically excluded pursuant to Rule 1100(d). We did not decide that issue until March 29, 1976. Commonwealth v. Millhouse, 239 Pa. Super. 445, 362 A.2d 398 (1976), rev'd on other grounds, 470 Pa. 512, 368 A.2d 1273 (1977). Therefore, when appellant entered his plea, the alternatives confronting appellant and counsel were these: to chance a trial verdict and a severe sentence and take a chance that this Court would reverse the judgment of sentence on a question of first impression or to take a lesser sentence and forego the uncertain route of appellate litigation. Appellant concedes that he and his counsel discussed the existing alternatives he now asserts that the advice was bad. We cannot conclude that the course chosen by counsel was unreasonable in light of the uncertainty of the law in 1975. To hold otherwise would require the use of 20-20 hindsight in order to conclude that the ...


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