No. 237 March Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division, Franklin County, at No. 405-1979.
Timothy W. Misner, Waynesboro, for appellant.
John F. Nelson, Assistant District Attorney, Chambersburg, for Commonwealth, appellee.
Cercone, P.j., and Wieand and Lipez, JJ.
[ 307 Pa. Super. Page 508]
This is an appeal from an order of the Court of Common Pleas of Franklin County denying appellant's Post Conviction Hearing Act (hereinafter PCHA) petition.
On December 8, 1978 appellant entered a plea of guilty to the felony charge of escape. On December 20, 1978 the court sentenced appellant to the payment of costs, a fine and imprisonment in a state correctional institution for one and a half to three and a half years. The court then suspended the sentence and placed appellant on "probation" for three and a half years. The terms of his probation included participation in an alcohol abuse program, the non-consumption of alcoholic beverages, and imprisonment in the Franklin County Prison for twenty-three months and twenty days.*fn1 Following imposition of sentence appellant was advised that he had ten days within which to request a modification of sentence and thirty days within which to file a direct appeal. Neither a motion to modify sentence nor a direct appeal was ever filed. On May 4, 1978 appellant filed a PCHA petition which was amended May 17, 1978. The petition, as amended, alleged the unlawful inducement of his
[ 307 Pa. Super. Page 509]
December 8 guilty plea, the violation of double jeopardy principles by the sentence of probation, and the ineffectiveness of counsel for failure to file the required Pa.R.Crim.P. 1410 motion for modification of sentence and to take a direct appeal. On July 2, 1979 the court set August 20, 1979 as the date for the hearing on this PCHA petition. Also on July 2, 1979 the court, after a full hearing on a petition to revoke probation, found that appellant had violated the conditions of his probation and entered the following order:
NOW, July 2, 1979, a hearing having been held this date and the Court being of the opinion that Robert Roy Roach violated the terms of his agreement for participation in the work/education program of the Franklin County Prison in that he (1) cashed his paycheck of May 18, 1979 and diverted $83.00 to Wendy Carnes (2) he had incurred indebtedness to Miss Carnes without the consent of the Work Release Director, (3) he received and possessed a quantity of vodka at his place of employment, and (4) he consumed a sufficient quantity of alcohol while on work release so that he tested .10 on the Sober Meter test administered at the Franklin County Prison at 5:24 P.M. on May 18, 1979; all of which led to his removal from the Work Release Program.
In addition the defendant violated condition No. 6 of his special probation by reason of his voluntary conduct leading to his failure to maintain employment and the special court imposed condition against the consumption of alcohol.
IT IS ORDERED THAT that suspended sentence imposed December 20, 1978 be vacated. The Defendant shall be given credit for all time served in the Franklin County Prison against the 1 year to 3 1/2 year sentence imposed December 20, 1978.
On August 6, 1979 an order was entered specifically giving appellant six months and sixteen days credit to be applied to the one and a half to three and a half year prison term the court ...