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COMMONWEALTH PENNSYLVANIA v. GARY KESSINGER (02/12/82)

filed: February 12, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY KESSINGER, APPELLANT



No. 227, Pittsburgh, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas of Erie County, Pennsylvania, Criminal Division Imposed March 4, 1980, Numbers 1194 and 1195 of 1979.

COUNSEL

Joseph P. Martone, Erie, for appellant.

James E. Blackwood, Assistant District Attorney, Erie, for Commonwealth, appellee.

Spaeth, Shertz and Montgomery, JJ. Spaeth, J., concurs in the result. The decision in this case was rendered prior to the expiration of Judge Shertz's commission of office on the Superior Court of Pennsylvania.

Author: Shertz

[ 295 Pa. Super. Page 260]

Appellant, Gary Lee Kessinger, pleaded guilty to five counts of Theft by Deception.*fn1 In this appeal from judgment of sentence Appellant makes three contentions: (1) the sentencing court abused its discretion in refusing to allow him to inspect the pre-sentence report; (2) he was denied a full and fair allocution as provided in Rule 1405, Pa.R.Crim.P., because of this refusal; and, (3) sentencing counsel*fn2 was ineffective for failing to place specific objections to the pre-sentence report on the record at the time of sentencing and for withdrawing a motion to vacate the guilty plea prior to a full determination of the merits of the motion. We find no merit in any of these contentions and we therefore affirm the judgment of sentence.

With regard to Appellant's first assertion, the record simply does not support the contention that the trial court did not act in conformity with the mandates of Rule 1404, Pa.R.Crim.P.*fn3 or Commonwealth v. Phelps, 450 Pa. 597, 301

[ 295 Pa. Super. Page 261]

A.2d 678 (1973), and the ABA Standards Relating to Sentencing Alternatives and Procedures adopted therein.*fn4 The record reveals that counsel for Appellant was permitted full access to the report*fn5 as required by the Rules of Criminal

[ 295 Pa. Super. Page 262]

Procedure and the ABA Standards. Thus, we reject Appellant's argument that the trial court abused its discretion in disallowing him personally to review the report for inaccuracies.*fn6 As the trial court stated to Appellant at the time of sentencing:

Mr. Kessinger, I'll explain to you further what I said about the presentence report. Your attorney has [been?] provided this and there are matters here that the probation department has developed in their investigation and reevaluation of the case. These are matters that they have worked on, and they have a right to keep confidential. The other matters, I would tell you, ...


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