No. 664 October Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Lancaster County, Pennsylvania, Criminal, No. 1549 of 1978 Imposed February 21, 1979.
Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
Ronald L. Buckwalter, District Attorney, Lancaster, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn* Wickersham, J., files a concurring statement. Eagen, J., files a dissenting opinion.
[ 280 Pa. Super. Page 289]
Appellant pleaded guilty to a charge of attempted rape on January 8, 1979. The lower court sentenced him on February 21, 1979.
Mr. Garris now claims by new counsel that he received ineffective assistance of counsel at trial for the following reasons: (1) failing to object at sentencing to the possible consideration of the Sentencing Act at November 26, 1978, No. 319, 7 Pa.Leg.Serv. 78, 1054 (subsequently referred to as Act 319); (2) failing to instruct the court upon the proper application of Act 319. Additionally, appellant contends the lower court erred when it refused to permit him to withdraw his guilty plea due to the court's failure to advise him during the guilty plea colloquy that it would consider Act 319.
At sentencing, the District Attorney brought to the attention of the court that Act 319 existed. He specifically discussed Section 5 of the Act which states:
Section 5. Pursuant to this section, there is established an interim guideline for the minimum sentencing of certain repeat offenders.
(a) Until sentencing guidelines adopted by the Pennsylvania Commission on Sentencing and relating to the offenses set out in this subsection become effective pursuant to 18 Pa.C.S. Sec. 1385 (relating to publication of guidelines for sentencing), when any person is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault as defined in 18 Pa.C.S. Sec. 2702(a)(1) (relating to aggravated assault) involving the use of a firearm, arson or kidnapping, or of attempt to commit any of these crimes, and when that person has been previously convicted in this Commonwealth, or any other state or the District of Columbia, or any Federal court, of any of the offenses set forth in this
[ 280 Pa. Super. Page 290]
section or their equivalent, the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum ...