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COMMONWEALTH PENNSYLVANIA v. JAMES SEELEY (02/05/82)

February 5, 1982

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES SEELEY, APPELLANT



NO. 2813 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Luzerne County, No. 1520-A of 1980.

Before McEWEN, Montemuro, and Shertz, JJ. Shertz, J. did not participate in the consideration or decision of this case.

MEMORANDUM

Appellant, James Seeley, was charged with simple assault,*fn1 aggravated assault,*fn2 assault by prisoner,*fn3 and criminal attempt.*fn4 These charges were filed against appellant for his involvement in an attempted escape from Luzerne County Prison with three other inmates. In accordance with a plea bargain, appellant pled guilty to aggravated assault and testified on behalf of the Commonwealth in the prosecution against the other inmates. The Commonwealth, in return, nol prossed the criminal attempt and assault by prisoner charges and further agreed to recommend to the lower court, a concurrent sentence to the one he was then serving. On November 20, 1980, the lower court, at the sentencing proceedings, did not accept the Commonwealth's recommendation and instead, sentenced appellant to a consecutive term of one (1) to (4) years imprisonment. Subsequently, on November 28, 1980, appellant filed a petition to modify sentence. Appellant's petition was denied by the lower court without a hearing. This direct appeal followed.

The only issue raised in this appeal concerns whether the sentence imposed by the lower court is unconstitutionally excessive and in contravention of the sentencing code. For reasons set forth below, we affirm the judgment of sentence.

Appellant contends that the sentence imposed is unconstitutionally excessive in that the lower court improperly refused to accept the Commonwealth's recommendation to impose a concurrent sentence pursuant to the plea bargain. On October 15, 1980, prior to the acceptance of the plea bargain entered into between appellant's counsel and the Commonwealth, the lower court engaged in the following colloquy with appellant:

The Court: And is your plea of guilty part of an agreement that has been entered into between your lawyer and the Commonwealth that the other three charges would be dropped? One by virtue of a rule of law where the simple assault would become part of the aggravated assault, and the other two by motion of the Commonwealth to the court to drop the charge of criminal attempt to commit escape and assault by prisoner?

The Defendant: Yes.

The Court: And, was the last part of the agreement that you would testify against the other three Defendants in the case, and those Defendants are: Donald Walsh, Michael Kalson and Bernard Johnson?

The Defendant: Yes.

The Court: Did anyone promise you anything else other than what I have just explained to you?

The Defendant: No.

The Court: Anyone promise you that you'll get any particular sentence if you plead guilty?

The Defendant: No.

The Court: Does anyone--did anyone lead you to believe that any particular result would ...


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