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COMMONWEALTH PENNSYLVANIA v. WALLACE MENOSKY (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
WALLACE MENOSKY, A/K/A WALTER MENOSKY, APPELLANT



No. 702 April Term, 1977, Appeal from the final Order of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, denying defendant's Petition to Withdraw a Guilty Plea at No. CC7605984A.

COUNSEL

James R. Fitzgerald, Pittsburgh, for appellant.

D. Carroll, Pittsburgh, with him Robert E. Colville, District Attorney, Pittsburgh, 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. Price, J., notes his dissent.

Author: Cercone

[ 253 Pa. Super. Page 255]

Appellant, Walter Menosky, stands convicted of two counts of theft by receiving stolen property.*fn1 It was alleged that Menosky had accepted delivery of thirty-two radial

[ 253 Pa. Super. Page 256]

    tires valued at $1,750.00, property which had been stolen from the McKean Oldsmobile Company in Pittsburgh, Pennsylvania. Menosky was said to have purchased the tires from the two men who were responsible for the theft.

Menosky was brought before the court on December 15, 1976. Following a colloquy conducted by the trial judge, Menosky pleaded guilty to both counts. Subsequently, on February 28, 1977, after the trial judge had an opportunity to evaluate the pre-sentence investigation report, Menosky was sentenced to serve six to twenty-three months in prison. Seven days after sentencing, on March 7, 1977, Menosky filed petitions with the lower court for a reconsideration of sentence and a new trial, which the court treated as a petition to withdraw the plea. Following denial of the petition on April 22, 1977, Menosky appealed to this court.

Appellant brings two issues before the court. First he argues that his petition to withdraw his guilty plea was timely, though it had not been filed until after sentencing. Second, on the merits appellant argues that his guilty plea was invalid because the colloquy which preceded it was inadequate. Specifically, appellant points to the transcript of the colloquy which establishes that the trial judge, who led the colloquy, neglected to mention the possible range of sentences and the presumption of innocence.

On the question of the timeliness of appellant's petition to withdraw, in his opinion the trial judge quoted Pa.R.Crim.P., Rule 320, which provides:

"At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted."

By negative implication the trial judge concluded that under the above-cited rule, a plea of guilty ordinarily may not be withdrawn after sentence. The lower court, however, admitted that there is an exception to the general rule which allows an accused to withdraw his guilty plea after sentencing when he can show that prejudice on the order of manifest injustice will ...


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