November 6, 1981
COMMONWEALTH OF PENNSYLVANIA
LUKE BARKSDALE, APPELLANT
No. 1114 Philadelphia, 1980, Appeal from Judgment of Sentence dated April 24, 1980, Court of Common Pleas, Criminal Trial Division, Philadelphia County, at Nos. 636, 638, 639, August Term 1979.
Before Cercone, P.j., Hester and Johnson, JJ.
Appellant pled guilty to charges of rape*fn1, unlawful restraint*fn2 and simple assault*fn3 on March 4, 1980. He was sentenced on April 24, 1980 to ten to twenty years for rape, two and one-half to five years for unlawful restraint and one to two years for simple assault, each to be served consecutively.
Appellant presents six issues on appeal: (1) merger of the unlawful restraint and simple assault charges, in violation of the prohibition against double jeopardy; (2) insufficient reasons articulated by the trial court for the imposition of the maximum sentences; (3) the lower court's denial of Appellant's Motions requesting sentence modification and challenging the validity of his guilty plea; (4) ineffective assistance of counsel; (5) voluntariness of the guilty plea; and (6) legality of the sentence. We find none of these issues to be of merit and affirm.
At the hearing at which the guilty plea colloquy was conducted, the following facts were established: On the evening of August 2, 1979, Edwina Baynes, age eighteen, was walking on the streets of Philadelphia when she was grabbed by Appellant and forced into the front seat of an automobile. The victim suffers from cerebral palsy, which has caused a loss of function in her right arm, an uneven gait, mild retardation and seizures. Appellant drove the victim to a vacant lot while the victim struggled to exit the vehicle and pleaded to be released. Once parked, Appellant began smothering her, and punched her in the face and choked her when she screamed and resisted. Appellant then vaginally raped her and after she refused his demand for oral intercourse, anally raped the victim. He then forced her into the backseat and again attempted to vaginally rape her. Appellant ultimately dozed off and the victim attempted to escape on several occasions, but was restrained each time by Appellant. She finally managed to exit the vehicle and alert authorities.
Appellant contends that his convictions for unlawful restraint and simple assault merged into the rape conviction, therefore violating the provisions against double jeopardy by imposing multiple sentences on a conviction for a single criminal episode. While Appellant's statement of the law is accurate, the facts of the instant case indicate that separate and distinct acts by Appellant led to each of the convictions and their sentences. As stated in Commonwealth v. Wojciechowski, , Pa. Super.Ct. , , 426 A.2d 674, 677 (1981), quoting Commonwealth v. Olsen, 247 Pa. Super.Ct. 513, 521, 372 A.2d 1207, 1211 (1977), remanded on other grounds, 487 Pa. 499, 410 A.2d 299 (1980):
"Thus, in order for two crimes to merge, they must be part of the same act. Without this requirement, that is, if the words 'necessarily involve' did not include this idea, a defendant could never be sentenced for two counts of the same crime. 'Separate and different acts of the same nature performed at different times generally constitute separate offenses.' Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. at 106, 21 A.2d at 922, quoting 22 C.J.S. Criminal Law § 9. See Commonwealth ex rel. Burge v. Ashe, 168 Pa. Super. 271, 77 A.2d 725, cert. denied, 341 U.S. 928, 71 S.Ct. 795, 95 L.Ed. 1359 (1951)."
Therefore, it was not error to sentence Appellant separately for each conviction.
The second issue concerns the sufficiency of the reasons for imposition of the maximum sentences, as articulated by the lower court.
It is settled law that Pennsylvania trial judges are vested with broad discretion in sentencing and that this court will not reverse a judgment of sentence unless an abuse of discretion is shown. Commonwealth v. Campolei, Pa. Super.Ct. , 425 A.2d 818 (1981), citing Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978). The judge must have accurate information including a presentence report when required, and must consider the character of the defendant and the particular circumstances of the offense. Commonwealth v. Youngkin, Pa. Super.Ct. , 427 A.2d 1356 (1981), citing Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). The judge must also make his reasons for imposition of a particular sentence clear on the record. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Youngkin, supra ; Commonwealth v. Campolei, supra.
After a thorough review of the provisions of the Sentencing Code,*fn4 the applicable case law and the record of the sentencing proceedings, we find that the lower court did take into account all required elements in regard to the sentences imposed, and did adequately state the reasons for the sentences.*fn5 We therefore find no merit in Appellant's argument.
Appellant next argues that the lower court erred in denying, without a hearing, his Motions requesting modification of sentence, challenging the validity of his guilty plea, and for appointment of new counsel.
It is well settled that the propriety of a withdrawal of a plea rests within the sound discretion of the trial court. Commonwealth v. Hayes, 462 Pa. 291, 341 A.2d 85 (1975); Commonwealth v. Culbreath, 439 Pa. 21, 264 A.2d 643 (1970). And when a petition to withdraw a plea of guilty is filed in the trial court subsequent to the imposition of sentence, relief will be granted only where necessary to correct a manifest injustice. Commonwealth v. Rosmon, 477 Pa. 540, 384 A.2d 1221 (1978); Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Commonwealth v. Stokes, 264 Pa. Super.Ct. 515, 400 A.2d 204 (1979).
Appellant filed a Motion to Challenge the Validity of a Guilty Plea post-sentence, alleging merely that his plea was not knowingly and intelligently entered. No facts were asserted in support of his contention. The plea colloquy record indicates no evidence whatsoever to support Appellant's argument. Therefore, we find no error to abuse of discretion in the lower court having dismissed Appellant's motion without a hearing. Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975); Commonwealth v. Harris, 267 Pa. Super.Ct. 229, 406 A.2d 778 (1979).
The fourth argument alleges ineffective assistance of counsel for failing to advise Appellant of the possible sentences which could have been imposed and his rights under Pa.R.Crim.P., Rule 320 and 321.
The plea colloquy amply indicates that Appellant was aware of the maximum sentences allowable. Secondly, because of our determination, pursuant to a complete review of the record, that the plea colloquy was valid and because Appellant has not alleged that he would have filed a Motion to withdraw his guilty plea before sentencing, we do not find counsel ineffective for allegedly failing to inform Appellant of his right to petition for withdrawal of his guilty plea before sentencing as per Pa.R.Crim.P., Rule 320. Also, since Appellant did, in fact, file a Motion challenging his guilty plea after sentencing, as per Pa.R.Crim.P., Rule 321, no prejudice occurred concerning the alleged failure of counsel to inform Appellant of this right. Therefore, counsel for Appellant was not ineffective, as the issues raised are meritless. See Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040 (1980).
Appellant's fifth argument concerns directly the validity of his guilty plea. He argues that his plea was invalid because he was never advised of his right to be tried by members of the community who would have to reach a unanimous verdict. The applicable portion of the colloquy record states otherwise:
"Q. Now, you also have the right to a trial by jury. If you wish to have a trial by jury, before your trial began there would be a hearing, where approximately forty members of the City and County of Philadelphia selected at random from the voter registration rolls would be brought into the room. From that group, twelve people would be selected to sit as the jury in your case... Do you understand that?
A. I do.
In order to find you guilty, all twelve would have to be convinced of your guilt beyond a reasonable doubt. Do you understand that?
A. I do."*fn6
We find this to be a valid waiver of Appellant's right to a jury trial, in the areas alleged by Appellant to have been made in error. See Commonwealth v. Fortune, Pa. Super.Ct. , 433 A.2d 65 (1981); Commonwealth v. Bouie, 263 Pa. Super.Ct. 556, 398 A.2d 716 (1979); Commonwealth v. Gadson, 234 Pa. Super.Ct. 648, 341 A.2d 189 (1975).
The sixth issue raised by Appellant alleges that the sentence imposed was illegal because the lower court's opinion, pursuant to Pa.R.A.P. 1925, states that the maximum sentence was twenty-six years, in violation of 18 Pa.C.S.A. 1356 (b)*fn7 which states that the minimum sentence imposed shall not exceed onehalf of the maximum sentence. As this clerical error appears only in the lower court opinion and not in the docket entries or in the sentencing transcript, the issue is without merit.
Judgment of Sentence dated April 24, 1980 is affirmed.