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COMMONWEALTH PENNSYLVANIA v. DENNIS P. HUDGENS (12/02/77)

decided: December 2, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
DENNIS P. HUDGENS, APPELLANT



No. 1356 OCTOBER TERM, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lycoming County, Criminal Division, at Nos. 75-10,561; 75-11,187; 75-11,188 and 76-10,175.

COUNSEL

Charles J. Tague, Jr., Assistant Public Defender, Williamsport, for appellant.

Allen E. Ertel, District Attorney, Williamsport, for Commonwealth, appellee.

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

Author: Van Der Voort

[ 251 Pa. Super. Page 470]

Appellant, Dennis P. Hudgens, was charged with simple assault*fn1 following an incident that occurred at the Lycoming County Shelter facility on September 1, 1975. On January 19, 1976, he stood trial before a jury at No. 75-11,187 and was found guilty of that offense. The appellant had also been charged with attempted forgery,*fn2 No. 75-10,561, forgery*fn3 No. 76-10,175 and burglary,*fn4 No. 75-11,188. All three of these charges arose out of separate incidences. On March 1, 1976, after entering a plea of guilty to the three latter charges, appellant was sentenced on all four charges. On the charge of attempted forgery, No. 75-10,561, appellant was sentenced to pay the costs of prosecution, make restitution, if any, and undergo confinement in a state correctional facility for a term of not less than one year nor more than two years. On the charge of simple assault, No. 75-11,187, he was sentenced to pay the costs of prosecution, make restitution, if any, and undergo confinement in a state correctional facility for a period of time not less than one

[ 251 Pa. Super. Page 471]

    year nor more than two years. This sentence was to run concurrently with that imposed at No. 75-10,561. On the charge of forgery, No. 76-10,175, appellant was sentenced to pay the costs of prosecution, make restitution, if any, and undergo confinement in a state correctional facility for a period of time not less than two years nor more than five years. This sentence was to run concurrently with those imposed at No. 75-10,561 and No. 75-11,187. On the charge of burglary, No. 75-11,188, he was sentenced to pay the costs of prosecution, make restitution, if any, and undergo confinement in a state correctional facility for a period not less than two years nor more than ten years. This sentence was to run concurrently with those imposed at No. 75-10,561, No. 75-11,187 and No. 76-10,175.

Appellant raises at least one point of error on each of the four charges and the cases have been consolidated in this appeal. With respect to the three charges to which he pleaded guilty, appellant contends that the sentences imposed by the lower court were excessive. On the charge of simple assault, for which he was adjudged guilty by a jury, appellant argues that the sentence was excessive. In that case, no post-verdict motions were filed within the required time*fn5 and therefore appellant is raising the additional issues of ineffective counsel and failure to knowingly and voluntarily

[ 251 Pa. Super. Page 472]

    waive his right to file post verdict motions. On March 1, 1976, when appellant entered his plea of guilty to the three other charges, defense counsel acknowledged that post verdict motions were not timely made, but asked that he be permitted to put something on the record. The lower court allowed counsel to proceed whereby he stated:

BY MR. TAGUE:

I believe that it would be insufficiency of the evidence and that the verdict was against the weight of the evidence, that the evidence was insufficient and the verdict was contrary to the law. I believe that Mr. Campana may know any more specific ones, he is unable to be here, he did want them put on the record, so if he could possibly add any, he might want to add in addition to ...


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