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COMMONWEALTH PENNSYLVANIA v. WILLARD HERTZOG (01/27/81)

decided: January 27, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLARD HERTZOG, APPELLANT



No. 157 January Term, 1979, Appeal from the Order of the Court of Common Pleas of Northampton County at No. 331, April Term, 1975, entered April 3, 1979.

COUNSEL

Dwight L. Danser, Easton, Northampton, for appellant.

Richard J. Shiroff, James M. Connell, Asst. Dist. Attys., Northampton, for appellee.

Roberts, Justice. Flaherty, J., joins in this opinion and files a concurring opinion. Kauffman, J., joins in this opinion and the concurring opinion of Flaherty, J.

Author: Roberts

[ 492 Pa. Page 633]

OPINION OF THE COURT

Willard Hertzog appeals from an order of the Court of Common Pleas of Northampton County dismissing his amended petition for relief under the Post Conviction Hearing Act (PCHA) and his petition to withdraw his guilty plea "nunc pro tunc." We conclude that the court denied relief based on an erroneous belief that the sentence imposed on the plea to charges of aggravated assault is lawful. That portion of the order sustaining the sentence on aggravated assault is vacated and the record is remanded with instructions.

[ 492 Pa. Page 634]

I

In August of 1974, criminal complaints were filed against appellant charging him with involvement in the shooting death of one person and the serious injury of three others. Charges in the complaints include one count of murder, 18 Pa.C.S. § 2502, three counts of attempted murder, id. and § 901, and one count of possessing a prohibited offensive weapon (a bayonet), § 908.

Also included in the complaints are three counts of felonious aggravated assault, 18 Pa.C.S. § 2702(a)(1). Section 2702(a)(1) makes it a felony of the second degree for a person to

"attempt[] to cause serious bodily injury to another, or cause[] such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life . . . ."

Felonious aggravated assault is punishable by a term of imprisonment of up to ten years. 18 Pa.C.S. § 1103(2).

Appellant was arrested, preliminarily arraigned, and confined to the Northampton County Prison on the previously listed charges. Before any preliminary hearing, appellant was removed from the prison and committed to Farview State Hospital for psychiatric examination and treatment.

Appellant was returned to the county prison in May of 1975. On May 15, he was afforded a preliminary hearing on the charges, including felonious aggravated assault, and held for court.

Four days later, a grand jury returned three bills against appellant. Of the charges originally lodged in the criminal complaints, the true bills returned by the grand jury include the single count of murder, the three counts of attempted murder, and the single count of possessing an offensive weapon. The three counts of felonious aggravated assault charged in the complaints were not approved by the grand jury. Indeed, there is no indication that a bill containing the three counts of felonious aggravated assault was ever submitted to the grand jury. Instead, the record reflects that

[ 492 Pa. Page 635]

    the grand jury approved only three charges that appellant did "intentionally and knowingly cause bodily injury to [a named victim] with a deadly weapon." This language states a violation of 18 Pa.C.S. § 2702(a)(4), misdemeanor aggravated assault, a first-degree misdemeanor punishable by imprisonment of up to five years, § 1104(1). This offense differs from the second-degree felony offense, § 2702(a)(1), punishable by imprisonment of up to ten years, for which appellant was not indicted.

On September 22, 1975, appellant appeared at formal arraignment with retained counsel. Appellant pled not guilty to the single count of murder. The Commonwealth withdrew the offensive weapon count. As to the remaining charges, appellant did not formally enter a plea. Instead, counsel for appellant ...


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