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COMMONWEALTH PENNSYLVANIA v. JAMES P. HERBERG (11/05/82)

filed: November 5, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES P. HERBERG, APPELLANT



No. 116 Harrisburg, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Juniata County, Criminal Division, at Nos. 68, 69, 70 and 71 of 1979.

COUNSEL

John Rogers Carroll, Philadelphia, for appellant.

Michael Johnston, District Attorney, Mifflintown, for Commonwealth, appellee.

Wickersham, Rowley and Watkins, JJ.

Author: Rowley

[ 306 Pa. Super. Page 247]

The appellant, a practicing physician, entered pleas of guilty to ten (10) charges of unlawful distribution of controlled substances, as well as to two additional counts of

[ 306 Pa. Super. Page 248]

    conspiracy in connection with those deliveries. The deliveries were made in a five month period from November, 1978 to March, 1979. After having been sentenced to a total of five (5) to ten (10) years imprisonment, plus costs, restitution, and fine of $30,000.00, appellant presented a motion to withdraw his guilty plea and also for modification of sentence. The post-sentence motions were denied and appellant has filed this direct appeal.

Appellant argues first, that the guilty plea colloquy is defective and second, that the sentence imposed is excessive.

With respect to appellant's challenge to his guilty plea, it must be emphasized that there is an important distinction between pre-sentencing attempts to withdraw a guilty plea and post-sentencing attempts. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). When considering a petition to withdraw a guilty plea after sentencing, it is well established that "a showing of prejudice on the order of manifest injustice" is required before withdrawal is properly justified. Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). Post-sentencing attempts to withdraw a guilty plea must sustain this more substantial burden because of the recognition that a plea withdrawal can be used as a sentence testing device. Commonwealth v. Starr, 450 Pa. at 489, 301 A.2d at 594.

I.

Appellant's first challenge to the validity of his plea is that the colloquy is defective because he was not specifically advised that a jury verdict would have to be unanimous in order to convict him. The Commonwealth and the trial court concede that that specific instruction was not given. Therefore, under the standard set out in Commonwealth v. Starr, supra, we must determine whether refusing to allow appellant to withdraw his plea on that basis would amount to a manifest injustice.

We have concluded that appellant has not demonstrated any such "manifest injustice". During ...


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