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COMMONWEALTH PENNSYLVANIA v. ROBERT GLENN SMITH (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ROBERT GLENN SMITH, APPELLANT



NO. 250 APRIL TERM, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Blair County, at Nos. 608-614, 632, 825, and 849 of 1976.

COUNSEL

Ralph T. Forr, Jr., Assistant Public Defender, Altoona, for appellant.

Edward S. Newlin, Special Assistant District Attorney, Waynesboro, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a Concurring Opinion, in which Jacobs, President Judge, joins. Hoffman, J., files a Dissenting Opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 257 Pa. Super. Page 436]

On September 23, 1976, appellant Robert Glenn Smith entered a plea of guilty to six charges of burglary, two charges of theft, one charge of corruption of the morals of a minor, and one charge of attempted escape. Appellant was sentenced the same day to serve a total of 3 1/2 to 12 years imprisonment, to pay fines totaling $1,000, and to make restitution. On October 20, 1976, appeal was taken from the

[ 257 Pa. Super. Page 437]

    judgment of sentence; the following day, a petition to withdraw the guilty plea was filed. Hearing was held on the petition on November 2, 1976, and the lower court entered an order the same day denying the petition.

On appeal to our Court, appellant first argues that his guilty plea was not voluntary, knowing and intelligent because: 1) he was overwhelmed by his first appearance in criminal court, 2) his lack of education [appellant did not complete his senior year of high school] deprived him of the opportunity to intelligently make such a decision, and 3) he lacked the age [appellant was 18 at the time], maturity, and intelligence to voluntarily enter the guilty plea with a full understanding of the consequences. Pa. R.A.P. 1701(a), in effect at the time the appeal was taken, states the general rule: "Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter." Since appellant in the case before us filed his petition to withdraw his guilty plea after he filed his appeal to our court, under Rule 1701(a) the lower court lacked the power to hold a hearing to consider appellant's petition. We find appellant's petition to withdraw his guilty plea to be a nullity, and we are foreclosed from reaching the merits of the petition.

Appellant next argues that the sentences imposed were excessive*fn1 in light of various circumstances: a broken home, a drug and alcohol problem, the lack of a prior criminal record, the fact that he had just been laid off from work, and his youthfulness. Although our Court clearly has the power to reduce sentences which are manifestly excessive, we prefer generally to rely on the good judgment of

[ 257 Pa. Super. Page 438]

    the trial court. Commonwealth v. Riggins, 232 Pa. Super. 32, 332 A.2d 521 (1974). We have reviewed the record in this case, and we do not believe that the sentences imposed, 3 1/2 to 12 years imprisonment, fines totaling one thousand dollars, and restitution, on six charges of burglary, two charges of theft, one ...


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