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COMMONWEALTH PENNSYLVANIA v. DAVID X. WARREN (03/16/79)

decided: March 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID X. WARREN, APPELLANT



No. 279 October Term 1978, Appeal under the Post Conviction Hearing Act from the Order dated Oct. 13, 1977, of the Court of Common Pleas of Cumberland County, Criminal, at No. 895 of 1976.

COUNSEL

J. Wesley Oler, Jr., Carlisle, for appellant.

George E. Hoffer, Assistant District Attorney, Carlisle, for Commonwealth, appellee.

Jacobs, President Judge and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, President Judge, concurs in result. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.

Author: Spaeth

[ 264 Pa. Super. Page 276]

This is an appeal from an order denying a petition filed under the Post Conviction Hearing Act.*fn1

On November 23, 1976, appellant was charged with possession of an instrument of escape -- an ice pick -- while incarcerated at Camp Hill on other charges.*fn2 On January 1, 1977, the lower court appointed C. Roy Weidner, Jr., to represent appellant. On February 1 appellant entered a plea of guilty before the Honorable Sylvia H. RAMBO, and was sentenced to nine to eighteen months in prison to be served after completion of the sentence he was serving at Camp Hill.

On July 12, 1977, appellant filed a pro se petition under the Post Conviction Hearing Act. On the same day the lower court appointed counsel to assist appellant with his petition. On August 19 appellant filed an amended pro se petition. On August 25 a hearing was held before Judge RAMBO. At the beginning of the hearing counsel for appellant and the district attorney stipulated that the petition should be treated as if it were a petition to withdraw the guilty plea. On October 13 Judge RAMBO filed an

[ 264 Pa. Super. Page 277]

    order denying the petition; in the opinion accompanying the order the judge found that "[appellant] did in fact voluntarily, knowingly and freely enter his plea of guilty." Slip opinion at 4.*fn3

Where the record shows that a proper colloquy was conducted before the defendant entered his guilty plea, see Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), the burden is on the defendant to show that the plea was not intelligent and voluntary, Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968).

Appellant alleges in his petition that his guilty plea was invalid because: he did not ...


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