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COMMONWEALTH PENNSYLVANIA v. HERBERT DIETERLY (12/18/81)

filed: December 18, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
HERBERT DIETERLY, APPELLANT



No. 1603 October 1979, Appeal from the Order of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division denying Post Conviction Hearing Act Relief at No. 4100-76, 4101-76, 4133-76, 4722-76, 97-77, 98-77.

COUNSEL

Arthur J. King, Assistant Public Defender, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Brosky, Johnson, and Popovich, JJ. Brosky, J., files a concurring statement.

Author: Popovich

[ 294 Pa. Super. Page 27]

On April 27, 1977, appellant, Herbert Dieterly, entered pleas of guilty to six separate counts of theft by deception*fn1 and forgery.*fn2 One month later, appellant was sentenced to consecutive terms of imprisonment of one to seven years on the theft and forgery convictions. Appellant did not appeal the judgment of sentence; however, he did file a petition for reconsideration seeking a "reduction in the maximum sentences . . . to fifty-nine (59) months" and the authorization of the sentencing judge so that appellant would qualify for the work release program. The court granted appellant's reconsideration petition.

Approximately a year and a half later, appellant filed a petition under the Post Conviction Hearing Act. The Act of January 25, 1966, P.L. (1965), 1580, § 1 et seq., 19 P.S.A. § 1180-1 et seq. (1981-82). Appellant's petition was denied without a hearing, and this appeal followed. We affirm.

Under the Post Conviction Hearing Act, an issue is waived if the petitioner knowingly and intelligently failed to raise it and is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue. 19 P.S. § 1180-4(b). Because appellant did not assert at sentencing, in his reconsideration petition, or on appeal that (a) he should have been given credit for time served in prison between February 2, 1977 and August 9, 1977; (b) the court below erred when it failed to specify a definite date for the commencement of appellant's sentence; and (c) the court, at sentencing did not place on the record its reasons for the

[ 294 Pa. Super. Page 28]

    sentence imposed, those issues are waived. See e.g., Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Morris, 273 Pa. Super. 477, 417 A.2d 748 (1979).*fn3 Additionally, appellant has not alleged nor does the record support the existence of extraordinary circumstances.

Appellant, however, also has alleged that the court below did not have the power to sentence him on the forgery and theft convictions because "the [c]ommonwealth suffered but one crime when the defendant fraudulently cashed a check." See Brief for Appellant, at 5. (Emphasis added). The waiver doctrine has not been applied traditionally to this type of sentencing allegation. See Commonwealth v. Walker, 468 Pa. 323, 329, 362 A.2d 227, 230 (1976); Commonwealth v. Boerner, 281 Pa. Super. 505, 515 n. 11, 422 A.2d 583, 588 n. 11 (1980); Commonwealth v. Crocker, 280 Pa. Super. 470, 474 n. 2, 421 A.2d 818, 820 n. 2 (1980).*fn4

To begin with, in order to evaluate appellant's claim, it is necessary to examine the facts which were set forth in the informations charging appellant with both forgery and theft by deception. With minor ...


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