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COMMONWEALTH PENNSYLVANIA v. MELVIN SHAW (09/23/80)

filed: September 23, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
MELVIN SHAW, APPELLANT



No. 749 October Term 1979, Appeal from the Judgments of Sentence of the Court of Common Pleas of Delaware County at Nos. 280 & 282 May Sessions 1974.

COUNSEL

D. Michael Emuryan, Milmont Park, for appellant.

Guy Messick, Assistant District Attorney, Media, Vram Nedurian, Jr., Newtown Square, for Commonwealth, appellee.

Wickersham, Brosky and Eagen, JJ.*fn*

Author: Per Curiam

[ 280 Pa. Super. Page 577]

On May 9, 1975, Melvin Shaw was sentenced to concurrent terms of eleven and one-half to twenty-three months imprisonment following his conviction of theft by unlawful taking and conspiracy. He filed a direct appeal therefrom

[ 280 Pa. Super. Page 578]

    in this court, and we affirmed the judgments of sentence. Subsequently, Shaw was granted parole which ran to September 24, 1977.

On May 31, 1978, a private complaint was filed alleging that Shaw committed criminal offenses on June 22, 1977. Indictments were later returned charging Shaw with theft by failure to make required disposition of funds, theft by unlawful taking, theft by deception, and deceptive business practices. On February 6, 1979, Shaw entered a plea of guilty to deceptive business practices. The other charges were nolle prossed.

On or about February 22, 1979, the Delaware County Probation Office sent Shaw written notice that the guilty plea evidenced a parole violation and that a parole revocation hearing would be conducted on March 13, 1979. This notice was mailed to Shaw, but delivery was refused. However, Shaw was advised by his parole officer by phone of the parole revocation hearing.

At the hearing on March 13, 1979, Shaw appeared and moved that the proceedings be deferred until after disposition of a petition to withdraw his guilty plea of February 6, 1979. This motion was denied and the hearing proceeded.

In connection with the plea to deceptive business practices, Shaw's parole officer testified that, on May 31, 1978, a complaint was filed charging that, on June 22, 1979, Shaw was given a check for $3,000 as payment on account for the purchase of an automobile but neither the car nor the money was delivered, and that, on February 6, 1979, Shaw plead guilty to deceptive business practices and was ordered to make restitution. The parole officer also testified that, in making restitution which was a condition of his parole, Shaw was required to pay $100 per month but had not fulfilled this condition. The record of the guilty plea was then introduced into evidence without objection.

Shaw did not challenge the evidence of the guilty plea at the revocation hearing but challenged the authority of the court to proceed to ...


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