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COMMONWEALTH PENNSYLVANIA v. ANTHONY BURNO (02/25/83)

filed: February 25, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
ANTHONY BURNO



No. 51 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Trial Division - Criminal Section, of Philadelphia County, Nos. 1874 and 1876 April Term, 1974.

COUNSEL

Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.

Dennis R. Suplee, Philadelphia, for appellee.

Spaeth, Beck and Lipez, JJ. Spaeth, J., files dissenting opinion.

Author: Lipez

[ 310 Pa. Super. Page 565]

This is a Commonwealth appeal from an order permitting withdrawal of defendant's guilty pleas, vacating the judgment of sentence imposed on those pleas, and ordering a new trial. We agree with the Commonwealth that the lower court's order is inconsistent with Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979). Therefore we reverse the order of the court below, reinstating the guilty pleas and judgment of sentence.

Defendant was charged in 1974 with murder generally, as well as robbery and conspiracy. Defendant's counsel arranged a plea bargain, whereby defendant would plead guilty to murder and robbery, and the Commonwealth would certify that the murder rose no higher than third degree. The Commonwealth also agreed to recommend sentence of ten to twenty years for murder, with a consecutive five to ten years for robbery, and to move to nol pros the conspiracy charge. After a colloquy and summary of evidence by the prosecutor, Judge Savitt accepted the pleas of guilty of murder and robbery, adjudicated the degree of guilt for the murder as third degree, granted the motion to nol pros the conspiracy charge, and imposed the Commonwealth's

[ 310 Pa. Super. Page 566]

    recommendation of sentences totaling fifteen to thirty years.

In 1977, defendant filed a Post Conviction Hearing Act petition. The PCHA court appointed counsel, who filed amended petitions. After an evidentiary hearing, Judge Blake entered an order vacating the judgment of sentence and granting defendant a new trial. The Commonwealth filed a timely petition for reconsideration, and Judge Blake vacated the order, pending reconsideration. On December 16, 1980 Judge Blake entered an order reinstating his original order granting a new trial. The Commonwealth then took this appeal.

Judge Blake held that defendant's guilty plea counsel had been ineffective in failing to raise the issue that the guilty plea colloquy was defective, because of failure to inform defendant of all elements of the offenses and the possible range of sentences. The Commonwealth contends we must reverse Judge Blake's determination, because of Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979) (plurality opinion by Flaherty, J., joined by O'Brien and Larsen, JJ.; concurring opinion by Roberts, J., joined by Eagen, C.J.), in which a total of five justices held that guilty plea counsel was not ineffective in failing to attack a defective colloquy, even though there were valid grounds to do so, because the record demonstrated that the defendant was satisfied with the favorable plea bargain which had been negotiated.

Defendant here contends that his guilty plea counsel was nonetheless ineffective, because the record here shows that counsel did not inform defendant that there were grounds for withdrawal of his pleas, so that defendant could weigh this possibility against the favorable plea bargain and make his own choice as to whether to attack the guilty pleas on the basis of defects in the colloquy. However, this was also the case in Newell, in which counsel's failure to advise his client that the colloquy was defective formed ...


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