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COMMONWEALTH PENNSYLVANIA v. GEORGE COOKE (06/19/81)

decided: June 19, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE COOKE, JR., APPELLANT



No. 482 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Pennsylvania, Criminal Division, No. 2181 of 1979.

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.

Brosky, Johnson and Popovich, JJ.

Author: Popovich

[ 288 Pa. Super. Page 206]

The present appeal stems from the lower court's Order denying, without a hearing, appellant's "Motion To Withdraw Guilty Plea And To Have Outside Counsel Appointed."*fn1 For the reasons set forth herein, we vacate the

[ 288 Pa. Super. Page 207]

Judgment of Sentence and the Order of the Court of Common Pleas of Lancaster County and remand for proceedings consistent with this Opinion.

On February 13, 1980, appellant entered a plea of guilty to a charge of resisting arrest*fn2 and was sentenced, on the same day, to a period of probation for two years, fined $100.00 plus costs of prosecution and ordered to make restitution. The sentence imposed was pursuant to a plea agreement.*fn3 On February 22, 1980, appellant filed a timely motion to withdraw his guilty plea*fn4 and to have private counsel appointed

[ 288 Pa. Super. Page 208]

    contending that his attorney was "ineffective in assisting him in the disposition of his case." (Appellant's "Motion To Withdraw Guilty Plea And To Have Outside Counsel Appointed," Point 3) The attorney who prepared and presented the Motion was the same public defender who represented appellant at the guilty plea hearing.

The lower court denied appellant's Motion because it felt that the "plea was voluntarily made," and that "there [wa]s only the bare allegation of ineffective counsel and not support averments . . . ." (Lower Court Opinion, at 1 & 2)

On appeal the appellant, represented by second counsel from the public defender's office, "alleges that his trial attorney forced him into pleading guilty." (Emphasis added) (Appellant's Brief, at 2) This is the only issue raised. The Commonwealth urges us to dismiss this claim on the basis that "[a]ppellant did not make this allegation ...


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