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COMMONWEALTH PENNSYLVANIA v. RUSSELL ELMER KISSINGER (03/22/83)

submitted: March 22, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
RUSSELL ELMER KISSINGER, APPELLANT



No. 2786 Philadelphia 1981, Appeal from the Judgment of Sentence of September 25, 1981, Court of Common Pleas, Lancaster County, Criminal Division, at Nos. 255, 695, 757 of 1981.

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.

Hester, Johnson and Popovich, JJ.

Author: Johnson

[ 316 Pa. Super. Page 15]

Following pleas of guilty to charges of robbery,*fn1 theft,*fn2 two counts of simple assault,*fn3 terroristic threats,*fn4 and resisting arrest,*fn5 appellant was sentenced to 1 1/2 to 4 years on the robbery charge, 1 to 2 years on each of the simple assault charges, the terroristic threats charge, and the resisting arrest charge (all to be served consecutive to the sentence for robbery but concurrent with each other), and a sentence of 1 to 3 years on the theft charge (to be served concurrent with the sentences imposed for simple assault and terroristic threats).*fn6

A timely motion to modify sentence was filed and denied, followed by a direct appeal to this court on October 23, 1981. The record establishes that appellant was represented by counsel at his guilty plea tender on July 17, 1981, and at time of sentencing on September 25, 1981, as well as for the post-sentence motion to modify. Counsel was the same attorney from the Office of the Public Defender throughout the pre-appeal proceedings. The judge at both the guilty plea and sentencing proceedings was the Honorable Paul A. Mueller.

Between the date of the acceptance of the guilty plea,*fn7 on July 17, 1981, and the date of sentencing, September 25, 1981, the appellant, while still represented by counsel, filed a pro se Petition for Withdrawal of Guilty Plea, from the Lancaster County Prison. From the record, we note that both the Petition and a cover letter directed to the Lancaster

[ 316 Pa. Super. Page 16]

County Clerk of Courts are dated September 4, 1981. Both documents were filed in the clerk's office on September 8, 1981. Appellant in his cover letter expressly requested that the Petition "be filed and directed to the Honorable Ronald L. Buckwalter, Judge."

As soon as Judge Mueller, the sentencing court, learned of the pro se petition, on or about October 29, 1981 and following the perfecting of the appeal to this court from judgment of sentence, he scheduled a hearing on the petition for November 24, 1981. Although the notes of testimony from such hearing have not been included in the record certified to this court on appeal, we note from the Memorandum Opinion filed on or about November 25, 1981*fn8 that appellant testified that he never said anything to his attorney prior to sentencing concerning his filing of the pro se Petition for Withdrawal of Guilty Plea. We note further that appellant's counsel also testified at the November 24th hearing that he knew nothing about the Petition at the time of sentencing and only learned about that Petition later.

Our independent review of the sentencing transcript satisfies us that appellant was afforded time to review the pre-sentence report and consult with his attorney during a recess in the sentencing proceedings. Thereafter, when asked by the court whether there was anything that he wanted to add or ...


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