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COMMONWEALTH PENNSYLVANIA v. BRIAN VIGUE (06/27/80)

filed: June 27, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
BRIAN VIGUE, APPELLANT



No. 90 April Term, 1979, Appeal from order entered on January 22, 1979 in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division at Nos. CC7802960 and CC7803224.

COUNSEL

John H. Corbett, Jr., Pittsburgh, for appellant.

Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Price, Hester and Cavanaugh, JJ. Hester, J., files a dissenting statement.

Author: Cavanaugh

[ 279 Pa. Super. Page 47]

Appellant, who at the time was eighteen years of age, entered guilty pleas to charges of burglary, theft by unlawful taking or disposition and receiving stolen property. After reviewing appellant's juvenile record, the court below sentenced appellant to the Correctional Institution for Boys at Camp Hill, Pennsylvania. Sentence was imposed on November 1, 1978 and on December 1, 1978 the appellant filed a motion to withdraw his guilty plea. The court below denied the petition to withdraw and the appellant has filed an appeal to this Court.

At the time sentence was imposed, the court stated, "You have a right to take an appeal within thirty days. If you

[ 279 Pa. Super. Page 48]

    don't have a lawyer, one will be appointed to represent you free of charge." (N.T. 7-8, sentencing proceedings, November 1, 1978.)

On appeal, appellant contends that the court below misinterpreted Pa.R.Crim.P. 320, 321 and 1405(c)(2) and that this misinterpretation of the rule of criminal procedure denied the appellant an opportunity to file a timely petition to withdraw his guilty plea. We agree that the court below did not comply with Pa.R.Crim.P. 1405(c)(2), which provides:

At the time of sentencing, the judge shall:

(c) Advise the defendant on the record:

(2) of the right to file motions challenging the propriety of the sentence (and, in the case of a plea of guilty, the validity of the plea or the ...


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