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COMMONWEALTH PENNSYLVANIA v. DONALD M. RIVIERA (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD M. RIVIERA, APPELLANT



No. 59 March Term, 1977, Appeal from the Judgment of Sentence of November 3, 1975 in the Court of Common Pleas, Criminal Division, County of York, at No. 469 January Sessions, 1975.

COUNSEL

Eugene R. Campbell, York, for appellant.

Donald L. Reihart, District Attorney, York, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Spaeth, J., concurs in the result.

Author: Cercone

[ 254 Pa. Super. Page 198]

The instant appeal arises from judgments of sentence imposed on appellant, following a plea of guilty, for aggravated assault, robbery and theft. On appeal appellant contends that the court below improperly denied his motion to dismiss these charges pursuant to Pa.R.Crim.P., Rule 1100. Appellant also maintains that the sentences imposed, although within statutory limits, were punishment too severe for the crimes appellant committed. The relevant facts are as follows.

[ 254 Pa. Super. Page 199]

On February 6, 1975, complaints were filed against appellant charging him with the aforementioned offenses. Subsequently, upon appellant's petition, the court stayed proceedings, pending a report by the Sanity Commission on appellant's competence to stand trial.*fn1 Thereafter, other occurrences conspired, despite the due diligence of the district attorney's office, in preventing appellant's trial from taking place prior to August 6, 1975, one hundred eighty days from the filing of the complaints. Recognizing that trial would not timely occur, on July 29, 1975, the Commonwealth filed a petition for an extension of time pursuant to Rule 1100(c) which was granted.

On September 5, 1975, the parties again appeared before the court, at which time appellant filed his motion to dismiss. Upon denial of the motion by the court, appellant's counsel advised the court that appellant had reached a plea agreement with the Commonwealth. The court received and accepted appellant's guilty plea and, on November 3, 1975, imposed sentence of one to two years for theft and three to six years for aggravated assault and robbery. The sentences were to run consecutively.

Appellant's first argument, that his motion to dismiss was erroneously denied, relates to his contention that the court should not have granted the Commonwealth's petition for an extension. We have concluded, however, that this issue is not now reviewable.*fn2 Numerous Pennsylvania appellate decisions have repeatedly held that a plea of guilty constitutes a waiver of all non-jurisdictional defects and defenses. See, e. g., Commonwealth v. Rice, 456 Pa. 90,

[ 254 Pa. Super. Page 200318]

A.2d 705 (1974); Commonwealth v. Tolbert, 450 Pa. 149, 299 A.2d 252 (1973); Commonwealth v. Diaz, 235 Pa. Super. 352, 340 A.2d 559 (1975). Furthermore, by entering his plea of guilty at trial while represented by counsel, appellant limited the legally cognizable issues on appeal to those which affect either the voluntariness of his guilty plea or the legality of his sentence.*fn3 Commonwealth v. McNeill, 453 Pa. 102, 103, 305 A.2d 51 (1973); Commonwealth v. Person, 450 Pa. 1, 297 A.2d 460 (1972); Commonwealth v. Zanine, 444 Pa. 361, 282 A.2d 367 (1971). "Rule 1100, like the right to a speedy trial which it protects, may be waived." Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976).

In any event, the claimed irregularity in proceedings prior to a plea of guilty, an alleged violation of Rule 1100, would be reviewable only to the extent that it affected the voluntary character of the plea itself. Therefore, even though a violation of Rule 1100 is ordinarily reversible error, the appellant, after a guilty plea, must show that its violation had some effect upon the voluntariness of his guilty plea, or that defect is waived. See Commonwealth v. Rice, 456 Pa. at 93 n.3, 318 A.2d 705; Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 341 n.2, 223 A.2d 699 (1966); Commonwealth v. Bowman, 228 Pa. Super. 342, 344 n.3, 325 A.2d 818 (1974). It is significant in this regard that in the instant appeal no attack is made, directly or indirectly, on the voluntariness of appellant's guilty pleas. In a recent decision, the Pennsylvania Supreme Court (per Justice Pomeroy) held that where a defendant who pleaded guilty raised neither the legality of sentence nor ...


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