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COMMONWEALTH PENNSYLVANIA v. DAVID LEE FERGUSON (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DAVID LEE FERGUSON, APPELLANT



No. 277 March Term, 1977, Appeal from the Order entered December 8, 1976, of the Court of Common Pleas of Dauyphin County, denying Appellant's Post Conviction Hearing Act Petition at Nos. 1832, 1844, 2405 Criminal Division 1973, and No. 272 Criminal Division 1974.

COUNSEL

Bruce D. Foreman, Harrisburg, for appellant.

Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ.

Author: Hester

[ 257 Pa. Super. Page 500]

This is an appeal from the Order of the Common Pleas Court of Dauphin County, Criminal Division, denying Appellant's Post Conviction Hearing Act Petition.

On November 13, 1974, Appellant represented by the Public Defender, entered a plea of guilty to four counts of burglary. He was subsequently sentenced to three terms of 4 to 8 years, and one term of 7 to 15 years, all to run concurrently. No direct appeal was taken. On December 19, 1974, Appellant filed his first Post Conviction Hearing Act Petition, alleging that he had not been tried within 270 days as then required by Rule 1100. Trial counsel (Public Defender) was appointed to assist the Appellant. The Petition was denied, January 23, 1975, without a hearing. The court determined, as a fact, that Appellant had been tried within 242 days.

On April 22, 1975, Appellant filed his second Post Conviction Hearing Act Petition, alleging that his plea of guilty had been unlawfully induced. Counsel, other than trial counsel, but also from the Office of the Public Defender, was appointed to represent Appellant. The court denied the second Petition without a hearing on August 26, 1975, reasoning that the record refuted Appellant's allegation that his plea was unlawfully induced and further, that since this issue had not been raised in the first Post Conviction Hearing Act Petition, it was, therefore, deemed to have been waived.

On September 20, 1976, Appellant filed his third Post Conviction Hearing Act Petition (the denial of which is before this court). Counsel, other than the Public Defender, was appointed to represent the Appellant, and proceeded to file a Supplemental Petition. That Petition alleged that Appellant had been denied his right of representation by competent counsel and that his plea of guilty had been unlawfully induced. In support of these arguments, Appellant alleged the following: that he was not competent to stand trial or aid or assist counsel in a defense; that three indictments were returned during the period Appellant was

[ 257 Pa. Super. Page 501]

    confined in Farview State Hospital and were subject to challenge; that the withdrawal of the Motions to Quash said Indictments was made without his consent; that Appellant is a functional illiterate, and that his plea of guilty was induced by a promise of a sentence that would not exceed 14 months.

The court on December 8, 1976, denied the Petition without a hearing, stating that each of Appellant's allegations had been refuted by the Commonwealth's Answer to the Petition. This appeal followed.

Appellant first contends that either his guilty plea was unlawfully induced by the promise of a sentence of only 14 months, when, in fact, he received a much greater sentence or in the alternative, he did not understand the nature and ...


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