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COMMONWEALTH PENNSYLVANIA v. JOHN GUY CARELLI (11/30/82)

filed: November 30, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN GUY CARELLI, JR., AND KATHLEEN M. CARELLI, APPELLANTS



No. 1082 PITTSBURGH, 1980, Appeal from an Order of November 5, 1980 in the Court of Common Pleas, Criminal Division, of Butler County, No. CA No. 240 A & B of 1980, Book 70, Pages 40 & 141. CA Nos. 241 A & B of 1980, Book 70, Pages 143 & 144; and C.A. No. 242 of 1980, No. 640 PITTSBURGH, 1981, Appeal from the Order of May 5, 1981, in the Court of Common Pleas, Criminal Division, of Butler County, No. CAA 240 of 1980, C.A.B. 240 of 1980, C.A.A. 241 of 1980, C.A.B. 241 of 1980, C.A. 242 of 1980.

COUNSEL

Allen N. Brunwasser, Pittsburgh, for appellants.

David L. Cook, District Attorney, Butler, for Commonwealth, appellee.

Hester, Johnson and Popovich, JJ.

Author: Hester

[ 308 Pa. Super. Page 525]

This appeal arises from a guilty plea entered into by appellants in the Court of Common Pleas of Butler County on September 18, 1980, and the subsequent denial by that court of appellants' Petition to Withdraw said pleas.

A procedural and factual history of the case is as follows.

On January 17, 1980, a search warrant was issued for appellants' residence for the purpose of searching for various items of furniture stolen from Mr. John E. George of North American Van Lines. Upon arriving at the appellants' residence, the Cranberry Township police officers were admitted by appellant Kathleen Corelli. They immediately informed her that they had a search warrant for the premises. Two officers, upon a brief search of the gameroom and garage area, located one vehicle that had been entirely stripped, five license plates, and various auto parts. The officers ran a check on the license plates which resulted in the finding that all the plates had been registered as stolen. With this information, the officers returned to the magistrate's office to obtain a second warrant in order to search the appellants' residence for stolen motor vehicle parts. Upon issuance of this second warrant, the officers returned to the appellants' premises and located eight stolen vehicles. It required 2 1/2 days to inventory the stolen motor vehicle parts located in appellants' premises. The estimated value of the stolen property totaled one hundred fifty thousand ($150,000.00) dollars.

As a result of this investigation, the following charges were brought against appellants on January 18, 1980: 1) possessing instruments of crime,*fn1 receiving stolen property

[ 308 Pa. Super. Page 526]

(9 counts),*fn2 removal or falsification of identification number (8 counts),*fn3 and dealing in vehicles with removed or falsified numbers (8 counts).*fn4 Appellant, John Guy Carelli, Jr., additionally was charged with burglary*fn5 and theft by unlawful taking or disposition.*fn6

Subsequently, on March 28, 1980, the date set for their preliminary hearings, the appellants waived their cases to court.*fn7 Appellants' cases were consolidated for trial and trial was set for June 20, 1980. However, appellants' second counsel filed a Motion for Continuance requesting that the court continue the case to the September term of court.*fn8 Appellants individually executed sworn written waivers of their Rule 1100 rights, and these were incorporated into the continuance motion.

On June 16, 1980, appellants' motion was granted. On the first day of trial, appellants entered into a plea agreement and a guilty plea colloquy was conducted on September 18, 1980.*fn9 Under the plea agreement, appellant Kathleen Carelli pled guilty to one count of receiving stolen property in exchange for a one year probationary term while her husband pled guilty to nine counts of receiving stolen property for terms of three to seven years imprisonment,

[ 308 Pa. Super. Page 527]

    said terms to run concurrently. Sentencing was scheduled for November 6, 1980.

On November 3, 1980, appellants third counsel filed a Petition to Withdraw Pleas of Guilty and for Pa.R.Crim.P. 1100(a)(2) discharge. This petition was denied by the court the same day.*fn10 Appellants new counsel, then on November 7, 1980, filed a Petition for Writ of Habeas Corpus, Mandamus, Prohibition and other Relief with this Court. On November 6, 1980 the appellants appeared before Judge Dillon. Appellants' counsel, Attorney Brunwasser, did not appear for this proceeding. In a letter dated November 5, 1980 to the lower court he stated that the Notice of Appeal he filed with this Court on November 5,*fn11 removed the matter from the jurisdiction of the lower court. However, appellants' second counsel did appear for the proceeding, but requested that he be excused since he believed that he had been discharged by appellants. Judge Dillon, after asking appellants whether they had retained Attorney Brunwasser and receiving an affirmative response, committed both appellants to the Butler County Prison until such time as the Court could "arrange a sentence period." The court explained to the appellants that it was prepared to impose sentence, but since appellants were entitled to be represented by counsel at sentencing, he would commit them to prison until an appropriate sentencing date could be set.

[ 308 Pa. Super. Page 528]

On November 7, 1980 this Court granted appellants' Petition for Writ of Habeas Corpus.*fn12

Judge Dillon, on December 11, accepted the plea arrangement and sentenced the appellants accordingly. A hearing on appellants' Petition to Withdraw their Guilty Plea was scheduled for January 8, 1981, but upon appellants' motion, was continued to March 12, 1981. After the March 12 hearing on appellants' Petition, the Court issued an Order on May 5, denying appellants' Rule 321 motion.

It is from the above orders of November 3, 1980, December 11, 1980, and May 5, 1981 that ...


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