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COMMONWEALTH PENNSYLVANIA v. JAMES A. MILLER (01/16/81)

filed: January 16, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
JAMES A. MILLER, APPELLANT



No. 72 Philadelphia 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lebanon County, Criminal at No. 117 of 1979.

COUNSEL

Robert Sullivan, Jr., Lebanon, for appellant.

William Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ.

Author: Spaeth

[ 283 Pa. Super. Page 413]

This is an appeal from a judgment of sentence entered on a plea of guilty to burglary.*fn1 Appellant entered his plea on April 30, 1979, and was sentenced on June 19. At the plea and sentencing proceedings appellant was represented by private counsel. On June 28, 1979, the Public Defender filed a motion requesting modification of the sentence. On October 24, the lower court, after a hearing, granted the motion and vacated the sentence. On December 12 the lower court re-sentenced appellant; it is from this sentence that the present appeal is taken. Appellate counsel is again new counsel.

Appellant's first argument is that his private counsel at the first sentencing proceeding was ineffective in failing to review the contents of the presentence report. This argument is moot. As mentioned above, the lower court, on motion of the Public Defender, vacated the first sentence.

Appellant's only other argument is that in re-sentencing him, the lower court erred because it considered his criminal record in spite of the fact that he testified that with respect to several of the convictions included in that record he had not been represented by counsel.

The transcript of the sentencing proceeding reveals that the lower court did in fact consider the convictions with respect to which appellant testified he had not been represented by counsel. In its opinion the lower court takes the position that it was entitled to consider the convictions:

[Appellant] complained about sentences imposed by courts in Philadelphia, Pennsylvania; Reading, Pennsylvania; Salisbury, Maryland; Montgomery, Alabama; Tallahassee, Florida; Lewisburg, Pennsylvania. His complaint was that he was not represented by counsel in those proceedings. However, he admits that he never attacked these convictions at those places. We are quick to note

[ 283 Pa. Super. Page 414]

    that we have only the defendant's word that he was unrepresented in those proceedings. But even if we were to accept his word, we would be without jurisdiction to void facially valid convictions in other jurisdictions. Consequently, the record of those convictions must stand, unless and until they are successfully ...


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