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COMMONWEALTH PENNSYLVANIA v. WILLIAM KELLY MCGARRY (04/16/80)

submitted: April 16, 1980.

COMMONWEALTH OF PENNSYLVANIA,
v.
WILLIAM KELLY MCGARRY, APPELLANT



No. 638 April Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Clearfield County, at No. 79-149-CRA of June 13, 1979. Criminal Division

COUNSEL

Alan Ellis, State College, for appellant.

Kim C. Kesner, Assistant District Attorney, Clearfield, for Commonwealth, appellee.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 280 Pa. Super. Page 528]

This appeal raises the issue of ineffectiveness of defense counsel at guilty plea proceedings.

On March 5, 1979, appellant was arrested on charges of possession of amphetamines and marijuana and possession of marijuana with the intent to deliver.*fn1 On June 13, 1979, appellant entered a guilty plea to the latter charge, and was sentenced to imprisonment of two to five years, less one day. Appellant then filed a petition for reconsideration of sentence. Although the lower court issued a Rule to Show Cause as to why the court should not reconsider the sentence, no action appears to have been taken on that Rule. On July 11, 1979, appellant filed a Notice of Appeal, alleging that the sentence was excessive. In September 1979 the public defender representing appellant petitioned for leave to withdraw as counsel. This petition was granted on October 1, 1979. In the meantime, on September 14, 1979, another attorney filed an entry of appearance on appellant's behalf, and petitioned for an extension of time in which to file a brief. On January 14, 1980, however, this attorney

[ 280 Pa. Super. Page 529]

    petitioned for leave to withdraw as counsel. This petition was granted on March 17, 1980. Appellant now files a pro se brief.

Appellant argues that he was denied effective assistance of counsel by the public defender who represented him at his guilty plea hearing. In particular, appellant alleges that the defender: 1) failed to discuss with him potential defenses before advising him to plead guilty; 2) failed to adequately explain to him the charges to which he was about to plead, or to advise him that by pleading, he would waive his 5th Amendment rights; 3) threatened and misled him into believing that he would receive a short prison term with work release by pleading guilty, and made him believe that he had made a plea bargain to this effect; 4) failed to advise him that if he wished to challenge the sentences, either because the lower court failed to comply with the alleged plea bargain, or on other grounds, he would have to file a petition to withdraw his plea.*fn2

In Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979) (footnotes omitted), our Supreme Court summarized

[ 280 Pa. Super. Page 530]

    the guidelines in cases involving ineffective ...


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