June 19, 1981
COMMONWEALTH OF PENNSYLVANIA
CHESTER LOSINGER, APPELLANT
No. 859 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Lycoming County Criminal Division, Nos. 75-10, 373, 75-10, 461, 75-10, 462.
Before Cavanaugh, DiSALLE and Montemuro, JJ.
The Order of the lower court is affirmed on the opinion of Judge Thomas C. Raup of Lycoming County.
Opinion AND ORDER
Before the Court is the Post Conviction Hearing Act petition filed by the defendant in which he claims that a plea bargain with respect to sentencing was made; that the plea bargain was not accepted by the Court; that he was not advised of his right to withdraw his guilty plea in the event the plea bargain was not accepted by the Court; and that he therefore should be permitted at this time to withdraw his plea of guilty.
After hearing held October 10, 1979, the Court makes the following findings of fact. There was no plea bargain with respect to the sentence which the defendant would receive. The only plea agreement which related in any way to sentencing was (a) that if the defendant waived extradition form the State of Texas to Pennsylvania, and if he cooperated with the prosecution in related cases, the district attorney's staff would advise the Court of that cooperation; (b) that the district attorney's staff would recommend that concurrent, and not consecutive, sentences be imposed with respect to the various burglaries and related charges facing the defendant in the above three matters; (c) that the district attorney would make no recommendation with respect to sentence; and (d) that the district attorney's staff would advise in writing the prosecuting attorneys of Bradford and Union Counties of the extent of the cooperation of the defendant in this County and would ask that the prosecuting offices in those counties recommend concurrent sentences.
At sentencing the district attorney advised the court of the defendant's cooperation, recommended concurrent sentences and stood mute as to sentence. The defendant and his attorney both expressly acknowledged that there would be no right to withdraw the guilty plea by reason of the severity of the sentence; i.e., that there was no plea bargain as to sentence, and that the amount of the sentence was within the discretion of the court following pre-sentence investigation.
The district attorney's staff orally advised the prosecuting attorneys in Bradford and Union Counties of the cooperation of the defendant and recommended concurrent sentences. This advice and recommendation was not made in writing. In Bradford County the charges were dismissed; in Union County a one year to three year sentence consecutive to Lycoming County sentence was imposed. We note that while the district attorney's advice to the district attorney in Union County was oral and not written, the assistant district attorney from this county and the prosecuting police officer personally went to Union County and personally communicated their feelings to a member of the district attorney's staff in that County. The court considers that the district attorney's staff thereby substantially complied with the plea bargaining in this regard. It was specifically noted in the guilty plea colloquy that the prosecuting people and the court in this county had no control over whether the court in Union County would impose a concurrent sentence.
In summary, we find no evidence of breach of plea bargain which would allow the defendant to withdraw his guilty plea, and accordingly the following Order is entered.
AND NOW, November 5, 1979, for the reasons set forth in the foregoing findings and discussion, the petition for relief under the post conviction hearing act is denied.
Thomas C. Raup, Judge
cc: District Attorney, Public Defender, Court Administrator
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