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COMMONWEALTH PENNSYLVANIA v. DAVID LELAND ROHDE (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID LELAND ROHDE, APPELLANT



No. 493 March Term, 1977, Appeal from the Order of the Court of Common Pleas of Adams County dated October 5, 1977 denying the appellant's Post Conviction Hearing Act Petition relating to appellant's conviction at No. 42, February Term, 1972 Court of Common Pleas of Adams County.

COUNSEL

Neil E. Jokelson, Philadelphia, for appellant.

Oscar F. Spicer, District Attorney, Gettysburg, for Com., appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, President Judge, and Cercone and Spaeth, JJ., concur in the result.

Author: Per Curiam

[ 257 Pa. Super. Page 518]

OPINION

This is an appeal from the judgment of sentence of the Court of Common Pleas of Adams County after the defendant-appellant,

[ 257 Pa. Super. Page 519]

David Leland Rohde, entered a plea of nolo contendere to a charge of unlawful possession of dangerous drugs. No appeal was taken from the sentence. He was sentenced to pay $300 fine, the costs of prosecution and given a 90-day suspended sentence. The 90-day suspension expired on March 15, 1972.

On September 6, 1974 the defendant presented a petition under the Post Conviction Hearing Act alleging that he was not informed of his right for a direct appeal from his sentence and that his plea was not knowingly and intelligently made in full recognition of his constitutional rights.

The Commonwealth filed a Motion to Dismiss his petition on the ground that the defendant was not eligible for P.C.H.A. relief because the sentence imposed was fully expired and for the further reason that the record on its facts rebuts the defendant's allegations. The court below took the Commonwealth's motion under advisement and held an evidentiary hearing. The defendant in his petition stated that his "conviction" subjects him to a continuing disability because it interferes with his ability to pursue his profession and otherwise restricts him from leading a useful life and obtaining appropriate employment. After the hearing, the court below filed an opinion dismissing his petition for relief on the ground that Section 3 of the Post Conviction Hearing Act of January 25, 1966, P.L. (1965), 1580, 19 P.S. 1180-3 provides that to be eligible for such relief the petitioner must prove: (a) that he has been convicted of a crime; (b) that he is incarcerated under a sentence of death or imprisonment; (c) that his conviction or sentence resulted from one or more of the reasons enumerated in the subsection; and (d) that the error resulting in his conviction has not been finally waived or litigated.

The record in this case demonstrates that the defendant is not incarcerated nor is he on parole or probation under the imposed sentence. The fine has been paid and the 90-day suspension has expired prior to this ...


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