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

SUPERIOR COURT OF PENNSYLVANIA


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, the other matters in your background, certainly would not indicate anything detrimental to you.

N.T. Sentencing Hearing at 4-5.

Appellant's next contention, that he was denied a full and fair allocution pursuant to Rule 1405, Pa.R.Crim.P.,*fn7 is similarly unsupported by the record.

The twenty-four page sentencing transcript indicates that both Appellant and his counsel were permitted to address

[ 295 Pa. Super. Page 263]

    the court prior to the imposition of sentence so as to afford Appellant a full and fair allocution. See Commonwealth v. Knighton, 251 Pa. Super.Ct. 299, 380 A.2d 789 (1977). In addition, the court below read the extensive materials which Appellant had submitted in his own behalf. N.T. Sentencing Hearing at 19. We therefore conclude Appellant was not denied his allocution rights.

Appellant's final argument alleges ineffectiveness of trial counsel on two grounds: failure to object to the presentence report at the time of sentencing and failure to seek a full determination of the merits of the motion to vacate the guilty plea. Insofar as the first of these assertions is concerned, it is without merit. We agree with the Commonwealth that appellate counsel has not specified in what respect sentencing counsel was ineffective for placing no specific objection to the pre-sentence report on the record. As this Court stated in Commonwealth v. Smith, 250 Pa. Super.Ct. 537, 378 A.2d 1278 (1977):

[R]ule 1404(a)(2) permits appellate counsel to see the report; he is, after all, "counsel for the defendant." Consequently, if appellate counsel wishes to argue before us that counsel at the sentencing hearing was ineffective for failing to dispute a presentence report, he must examine the report and then set out in his brief in what respect he contends the report prejudiced his client.

Id., 250 Pa. at 543, 378 A.2d 1282. Appellate counsel asserts trial counsel "though aware of possible inaccuracies in and of Appellant's displeasure with the report, did not rebut or object to it or any portion." Brief for Appellant at 20. Nowhere, however, does appellate counsel particularize inaccuracies in the report nor does he specify in what respect the report prejudiced Appellant. Appellate counsel's generalized, conclusory allegations of ineffectiveness of counsel at sentencing are insufficient under Smith.

[ 295 Pa. Super. Page 264]

Finally, the allegation that sentencing counsel was ineffective for withdrawing the motion to vacate Appellant's guilty plea without a hearing is also without merit. Appellant was sentenced on February 25, 1980. Subsequent Page 264} to sentencing, on March 3, 1980, counsel filed a motion to withdraw the guilty plea but withdrew same prior to oral argument.

In order to determine whether counsel's assistance was effective, we must be "able to conclude the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). [Emphasis in original.] However, counsel cannot be found ineffective for failing to assert a meritless claim. Only when an abandoned claim is of arguable merit must we inquire into counsel's basis for not pursuing it. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Commonwealth v. Weathers El, 485 Pa. 28, 31, 400 A.2d 1295, 1297 (1979). See also Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980) (counsel cannot be found ineffective for failing to assert a meritless claim).

Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Commonwealth v. Pettus, 492 Pa. 558, 562, 424 A.2d 1332, 1335 (1981).

Appellant argues that, unless it can be shown that he consented to the withdrawal of the motion to vacate, counsel was ineffective for withdrawing same*fn8 because of Appellant's

[ 295 Pa. Super. Page 265]

    loss thereby of the right to challenge the plea on appeal.*fn9 We disagree.

"Where . . . the withdrawal of the plea is sought only after sentence has been imposed, a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified." Commonwealth v. Starr, 450 Pa. 485, 489, 301 A.2d 592, 595 (1973) (emphasis added).

Applying this standard in conjunction with that enunciated in Pettus, we find that appellate counsel has failed to specify any facts which would enable a reviewing court to conclude that sentencing counsel could have made a showing of prejudice, on the order of manifest injustice, to the court below, such as would result in the grant of the motion. We therefore conclude that sentencing counsel was not ineffective in withdrawing the motion to vacate Appellant's guilty plea.

Judgment of sentence affirmed.


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