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COMMONWEALTH PENNSYLVANIA v. ROBERT PAUL DEVAULT (01/28/83)

filed: January 28, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT PAUL DEVAULT, APPELLANT



NO. 1215 PITTSBURGH, 1980, Appeal from the order of October 27, 1980 in the Court of Common Pleas of Fayette County, Criminal Division, at No. 713 1/3 of 1979, 715 2/3 of 1979.

COUNSEL

Charles O. Zebley, Jr., Uniontown, for appellant.

James T. Davis, Assistant District Attorney, Uniontown, for Commonwealth, appellee.

Wickersham, Wieand and Beck, JJ.

Author: Beck

[ 309 Pa. Super. Page 498]

Appellant Robert Paul Devault was arrested and charged with Receiving Stolen Property (No. 715 of 1979)*fn1 and two violations of the Uniform Firearms Act (No. 715 1/3 and 715 2/3 of 1979).*fn2 The lower court granted the defendant's motion for severance and Devault was tried and convicted of the charge of Receiving Stolen Property. Subsequently, in February 1980, he was tried to a jury and found guilty of the firearms charges.

After his conviction on the weapons offenses appellant filed motions for a new trial and in arrest of judgment. He had also initiated an appeal on the first conviction for

[ 309 Pa. Super. Page 499]

Receiving Stolen Property. An evidentiary hearing was scheduled for October 14, 1980 to consider issues raised in Devault's post-trial motions, i.e. that the court erred in not granting his request for replacement counsel, and that he was denied effective assistance of counsel at his trial. (R. no. 9). Prior to October 14, Devault agreed to plead guilty to the weapons offenses in return for a sentence to run concurrently with the sentence in the prior conviction (two to five years).

A colloquy was held on October 14 at which the terms of the guilty plea were explained to Devault. These terms included an agreement that Devault would withdraw his appeal on the earlier conviction and his motions following the second conviction in return for the concurrent sentence (R. no. 16). The judge informed Devault at the sentencing proceedings on October 16 that he had ten days to file a motion challenging the sentence on the grounds that the court lacked jurisdiction or on the grounds his withdrawal of the motions was not voluntary (R. no. 19). Appellant's counsel thereupon petitioned for a writ of habeas corpus on the grounds that the informations charging Devault with the firearms charges were not signed by the Fayette County district attorney and were therefore void ab initio, the court lacking jurisdiction to impose a sentence. He also urged that since more than 180 days had passed since the original complaint had been filed he was entitled to full discharge. The court dismissed the petition for habeas corpus without a hearing and this appeal followed.

Devault, who is no longer represented by his trial counsel, claims relief under P.C.H.A. 19 P.S. ยง 1180-3(c)(6), ineffective assistance of counsel, because his trial attorney failed to challenge the legality of the informations. He argues that because the informations are stamped with the district attorney's signature they lack the prerequisites of validity under the ruling in Com. v. Belcher, 258 Pa. Super. 153, 392 A.2d 730 (1978) and are void ab initio for failure to conform with Pa.R.Crim.P. 225(b).*fn3

[ 309 Pa. Super. Page 500]

The claim is without merit. Our Court has recently reviewed en banc the body of case law on the validity of rubber stamped facsimile signatures on informations. The questions addressed by the Court were (1) whether an information containing only a rubber stamp of the signature was valid within the meaning of Rule 225(b) and (2) assuming that such a rubber stamp signature was invalid, whether it rendered the information void ab initio or merely voidable. The Court held that a rubber stamp signature, without more, was not sufficient, but that the defect rendered the information voidable, not void. Up until a case reached the point where the information had lost any meaning, i.e. where the Commonwealth had begun to support the charges by proof at trial, or the defendant stood convicted, the defect was curable. However, if ...


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