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COMMONWEALTH PENNSYLVANIA v. ROBERT LEE MONTGOMERY (05/01/79)

SUPREME COURT OF PENNSYLVANIA


decided: May 1, 1979.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ROBERT LEE MONTGOMERY, APPELLANT

No. 231 March Term 1977, Appeal from Judgments of Sentence of the Court of Common Pleas of Clearfield County, Criminal Division, at No. 88 January Term 1972.

COUNSEL

Richard H. Milgrub, Public Defender, for appellant.

Barbara H. Schickling, Asst. Dist. Atty., Kim Kesner, Clearfield, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., filed a dissenting opinion.

Author: Eagen

[ 485 Pa. Page 112]

OPINION OF THE COURT

On January 22, 1972, Dorothy Ann Knepp and Donald Harry Snyder were fatally shot at the Windmill Tavern in Clearfield County. Subsequently, appellant, Robert Lee Montgomery, was indicted for both killings. On September 13, 1977, Montgomery, while assisted by counsel, plead guilty*fn1 to "two counts of murder of the second degree."*fn2

[ 485 Pa. Page 113]

In exchange for the guilty pleas, the district attorney agreed Montgomery could plead guilty to two counts of murder of the second degree and also recommended the court impose a sentence of not less than ten years nor more than twenty years imprisonment on one count and a consecutive sentence of not less than six years nor more than twelve years imprisonment on the other count. Following a degree-of-guilt hearing, the court "accepted" the pleas of guilt to "murder of the second degree" and immediately imposed the recommended sentences. On September 21, 1977, Montgomery filed a motion requesting the court to reconsider the judgments of sentence. This motion was denied and this appeal followed.

Initially, Montgomery maintains the trial court erred in accepting the guilty pleas. Specifically, he says his pleas were not knowing and intelligent since various facts on the record contravened his guilt. See Commonwealth v. Roundtree, 440 Pa. 199, 269 A.2d 709 (1970). This issue is raised for the first time on appeal to this Court and, therefore, has not been properly preserved for review.

In the motion,*fn3 filed after the imposition of the judgments of sentence and subsequently denied by the court, Montgomery did not challenge the validity of the guilty pleas. Rather, the sole issue raised in the motion was the legality of the sentences.*fn4 Thus, any challenge to the validity

[ 485 Pa. Page 114]

    of the guilty pleas is waived. Pa.R.Crim.P. 321. Cf. Pa.R.Crim.P. 1123; Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972).

Montgomery next contends the trial court erred in denying his pretrial motion to quash the indictment. He urges the indictment violated Pa.R.Crim.P. 219(b) since it contained two murder charges under one count of one indictment.*fn5 We need not and do not reach the merits of this issue.

A plea of guilty constitutes a waiver of all non-jurisdictional defects and defenses. Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974); Commonwealth v. Allen, 443 Pa. 447, 277 A.2d 818 (1971). When a defendant pleads guilty, he waives the right to challenge anything but the legality of his sentence and the validity of his plea. Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. McNeill, 453 Pa. 102, 305 A.2d 51 (1973). Instantly, Montgomery does not allege the Commonwealth failed to confront him with an indictment formally notifying him of the crimes charged.*fn6 See generally, Commonwealth v. Diaz, 477 Pa. 122, 383 A.2d 852 (1978); Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974). Rather, he charges the indictment is defective because it allegedly did not comply with the form suggested by Pa.R.Crim.P. 219(b). Clearly, the alleged defect is non-jurisdictional in nature. Thus, the issue is waived.

Finally, Montgomery complains the trial court erred in sentencing him pursuant to an indictment which allegedly did not comply with Pa.R.Crim.P. 219(b). In effect, Montgomery seeks review of the trial court's failure to quash the indictment by phrasing the issue as an attack on the legality

[ 485 Pa. Page 115]

    of the sentences.*fn7 Phrased in this manner, the issue would, at first blush, seem to be cognizable on appellate review of a guilty plea. See Green, supra; McNeill, supra. However, we decline to review the merits of a non-jurisdictional issue merely because it is phrased in terms of an attack on the legality of the sentences.

Judgments affirmed.

MANDERINO, Justice, dissenting.

I dissent. I cannot agree that defendant has waived his right to raise the issue of whether 219(b) has been violated. Rules are made to benefit all defendants, not some of them. Rule 219(b) does not say that it is inapplicable if one pleads guilty. I fail to understand why a defendant who loses a motion to quash the indictment must go to trial pleading not guilty to preserve the issue.


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