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COMMONWEALTH PENNSYLVANIA v. KIRK OTTO BENNETT (03/23/83)

SUPERIOR COURT OF PENNSYLVANIA


submitted: March 23, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
KIRK OTTO BENNETT, APPELLANT

No. 77 Harrisburg 1982, Appeal from the PCHA Order of the Court of Common Pleas of Dauphin County, Criminal Division, at No. 298 (A-E) C.D. 1980.

COUNSEL

James Lee Goldsmith, Harrisburg, for appellant.

William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Cercone, President Judge, and Cirillo and Hoffman, JJ.

Author: Hoffman

[ 316 Pa. Super. Page 22]

Appellant contends that the lower court erred in denying his Post Conviction Hearing Act (PCHA) petition without an evidentiary hearing. Because we cannot say that appellant's contentions totally lack merit, we reverse and remand for a hearing.

On May 19, 1980, appellant pled guilty to robbery, burglary, theft, criminal conspiracy and two counts of false imprisonment. He was sentenced to consecutive terms of imprisonment on all charges, totaling 20-to-40 years, to run concurrent with a previously imposed life sentence.*fn1 Appellant, who had separate counsel at his plea and at sentencing, filed this PCHA petition that was later amended by a third advocate. The lower court denied the petition without a hearing, prompting this appeal.

Appellant challenges counsel's ineffectiveness*fn2 in failing to object to the court's (1) failure to inform him of

[ 316 Pa. Super. Page 23]

    his right to allocution; (2) failure to place on the record its reasons for imposing sentence; and (3) sentencing him on the burglary and theft charges he claims should have merged. We cannot hold these contentions totally without merit. Nor can we evaluate them, however, because the lower court denied a hearing. Accordingly, we must remand for a hearing.

"A motion for Post Conviction Relief may be dismissed without a hearing after the defendant has been provided an opportunity to have counsel when the motion is patently frivolous or when the facts alleged would not, even if proven, entitle the defendant to relief." Pa.R.Crim.P. 1507(b). "While the right to an evidentiary hearing is not absolute, unless the PCHA court is certain of the total lack of merit of an issue raised in a PCHA petition, a hearing should be held on the issue." Commonwealth v. Rhodes, 272 Pa. Superior Ct. 546, 555, 416 A.2d 1031, 1035-36 (1979) (emphasis added).

Appellant first challenges his sentencing on burglary and theft, alleging that the two charges should have merged. In determining if two crimes merge for sentencing purposes, we compare the elements of the crimes. Commonwealth v. Crocker, 280 Pa. Superior Ct. 470, 474, 421 A.2d 818, 820 (1980). "In merger of sentences cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts . . . for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be a merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act." Id., 280 Pa. Superior at 475, 421 A.2d at 820-21. In the instant case appellant was sentenced, inter alia, on burglary and theft. The burglary charge arose from a nighttime entry into the victims' house, where the victims were bound and

[ 316 Pa. Super. Page 24]

    gagged while appellant and his partner ransacked the house. The theft charge arose from appellant's entering the victims' detached garage and stealing their automobile. Appellant contends that because he intended to commit the theft in the garage upon entering the house, the charges should merge.*fn3 We cannot say that this claim is patently frivolous or totally lacks merit. We are unable to determine on the record why neither guilty plea nor sentencing counsel asserted this merger argument. Accordingly, we must remand for that determination.

Appellant next challenges the denial of his right to allocution at sentencing and the lower court's failure to place on the record its reasons for the sentence imposed. Pa.R.Crim.P. 1405(a) requires the lower court to "afford the defendant the opportunity to make a statement in his own behalf." See Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980). The record indicates that at the time of sentence, appellant was not asked if he had a statement to make to the court.*fn4 There is, therefore, some merit to his contention that counsel was ineffective for failing to object to this oversight. Similarly, appellant challenges the lower court's failure to state its reasons for the sentence as required by Pa.R.Crim.P. 1405(b). The record demonstrates that the lower court did fail to indicate its reasons.*fn5 Thus,

[ 316 Pa. Super. Page 25]

    counsel's failure to object should be explored at an evidentiary hearing.

Accordingly, appellant is entitled to be heard on the merits of his claims. Only after that inquiry can his attorneys' effectiveness be fairly evaluated.

Reversed and remanded for an evidentiary hearing.

Jurisdiction not retained.


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