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COMMONWEALTH PENNSYLVANIA v. ANDREW KELLER (11/06/81)

filed: November 6, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
ANDREW KELLER, APPELLANT



No. 793 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Luzerne County at No. 2650 of 1978

COUNSEL

Patrick J. Flannery, Assistant Public Defender, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Brosky, Johnson and Popovich, JJ.

Author: Popovich

[ 292 Pa. Super. Page 166]

This is an appeal from an Order of the Court of Common Pleas of Luzerne County denying post-conviction relief without a hearing. We affirm.

The record reflects the following procedural history:

On January 22, 1979, appellant, Andrew Keller, entered a counseled plea of guilty to the charges of receiving stolen property and false reports to law enforcement authorities. On March 16, 1979, he was sentenced to concurrent terms of imprisonment of one to five years minus one day and one to two years, respectively. Ten days later, appellant filed a timely direct appeal to this Court, which was later withdrawn. On June 26, 1979, appellant's motion for resentencing, requesting a transfer from the county prison to a state correctional institution, was granted. Subsequently, appellant

[ 292 Pa. Super. Page 167]

    also filed a petition to vacate and reconsider sentence which was denied.*fn1

On February 8, 1980, appellant filed a pro se Post Conviction Hearing Act petition.*fn2 Counsel was appointed, and an amended petition was filed on February 26th. The court entertained oral argument on the petition on March 24 and denied the relief requested. This appeal followed.

Appellant first contends that he may withdraw his guilty plea because the trial court failed to inform him at sentencing that a petition to withdraw a guilty plea must be filed within ten (10) days of the imposition of sentence. See Pa.R.Crim.P. 1405(c)(3). We, however, cannot review the merits of this claim because it has been waived.

In order for a defendant to be eligible to obtain relief under the Post Conviction Hearing Act, "the petitioner must establish, inter alia, that the claim upon which he seeks relief, 'has not been finally litigated or waived'". Commonwealth v. Lochman, 265 Pa. Super. 429, ...


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