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COMMONWEALTH PENNSYLVANIA v. ANTHONY KEITH SPELLS (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY KEITH SPELLS, APPELLANT



No. 2055 October Term, 1977, Appeal from Order of the Court of Common Pleas of Lancaster County, Criminal Division, denying Post Conviction Relief as to No. 1153 of 1975.

COUNSEL

J. Richard Gray, Lancaster, for appellant.

Joseph C. Madenspacher, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting opinion. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Hester

[ 259 Pa. Super. Page 273]

This is an appeal from the Order of the Court of Common Pleas, Criminal Division of Lancaster County, denying Post Conviction Relief.

The procedural history and facts relevant to the issues on appeal are as follows:

A criminal complaint charging appellant with robbery was brought on January 30, 1975, in Lancaster County. Thereafter, appellant could not be located. Appellant was arrested and thereafter incarcerated on other charges in Dauphin County on March 13, 1975. The prosecuting officer discovered appellant's whereabouts on March 20, 1975, but did not serve the warrants on him until March 21, 1975. Appellant

[ 259 Pa. Super. Page 274]

    met with his trial counsel, a Public Defender, a short time prior to trial on September 17, 1975, and informed him of the date of the complaint and the date he was served with the warrant on the robbery charge. The appellant later testified at his Post Conviction Hearing, that his counsel advised that there were no grounds upon which to file a Pa.R.Crim.P. No. 1100 motion to dismiss. A jury was then selected after the denial of a motion for a continuance in order for counsel to better prepare for trial. Following selection of the jury, the appellant changed his plea to guilty and a full colloquy was conducted by the trial court. Subsequent to the factual basis for the plea being stated for the record, appellant inquired of the trial judge as to his right of appeal from the guilty plea. The trial judge informed the appellant that if he was later given a legal sentence, he could not appeal on the ground of illegality of the sentence. Appellant was further advised that the very purpose of the entire colloquy had been to determine if his guilty plea was voluntary. The appellant also indicated that he felt he would receive more time if he elected to go to trial and was convicted. The trial court replied that there was no doubt about that. The trial court made this observation after hearing the appellant's prior record and after "reluctantly" accepting the plea bargain for two to four years incarceration. Appellant then stated he would allow the plea to stand.

Appellant later filed a petition under the Post Conviction Hearing Act, which was denied following a hearing. This appeal followed.

Appellant alleges that trial counsel's refusal to move to dismiss under Pa. Rule of Criminal Procedure 1100, had no reasonable basis to effectuate his interests and he therefore was denied his right to effective assistance of counsel.

The guidelines for determining whether counsel is ineffective were set forth by the Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) wherein the court stated: "Our inquiry ceases and ...


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