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COMMONWEALTH PENNSYLVANIA v. EDWARD P. KALE (03/25/83)

filed: March 25, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD P. KALE, SR., APPELLANT



No. 683 Philadelphia, 1981, Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Lebanon County, No. 371 of 1972, No. 244 of 1972, No. 174 of 1973, No. 79 of 1977

COUNSEL

Horace M. Ehrgood, Lebanon, for appellant.

William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.

Wieand, Beck and Hoffman, JJ.

Author: Wieand

[ 312 Pa. Super. Page 70]

This is an appeal from an order denying four of five P.C.H.A. petitions, each of which sought to withdraw a separate plea of guilty.*fn1 The order was entered following a consolidated hearing at which appellant was represented by court appointed counsel. Appellant contends, as he did in the court below, that the guilty plea colloquies were defective in all instances for failing to recite the elements of the offenses to which pleas of guilty were being entered and that trial counsel was ineffective for failing to ensure that the guilty pleas were entered knowingly, intelligently and voluntarily. A brief review of the guilty plea proceedings is necessary to an understanding of appellant's several contentions and our decision to affirm the order of the trial court.

On July 25, 1972, the appellant, Edward P. Kale, Sr., entered a counseled plea of guilty to a charge of operating a motor vehicle while under the influence of alcohol. Although the trial court did not specifically enumerate and define the elements of the offense during the guilty plea colloquy, appellant told the court that he understood the elements and nature of the offense to which he was pleading guilty. On October 24, 1972, appellant entered a plea of guilty to a second and subsequent charge of operating a

[ 312 Pa. Super. Page 71]

    motor vehicle while under the influence of alcohol. This plea of guilty was negotiated by appellant's counsel. The guilty plea colloquy was full and complete, contained an enumeration of the elements of the offense, and established a factual basis for the entry of a plea of guilty. On the same day, October 24, 1972, appellant was sentenced on his pleas to both driving while under the influence offenses. For the first offense he was sentenced to pay a fine of $300.00 plus costs of prosecution. For the second offense, he was sentenced to undergo imprisonment for not less than 11 1/2 nor more than 23 months. No direct appeal was filed from either judgment of sentence.

On July 3, 1973, appellant entered a negotiated plea of guilty to two counts of turning in false fire alarms. The false alarms had been turned in on May 5, 1973, while Kale was on work release from the Lebanon County Prison. Although the record colloquy does not contain a further enumeration of the elements of the offense, appellant did tell the trial court that he had discussed the same with his attorney and understood them. He was committed the same day to Wernersville State Hospital for examination, diagnosis and treatment on account of a history of alcoholism. On September 4, 1973, he was sentenced to pay fines of $400.00 and to serve two consecutive terms of imprisonment for not less than one nor more than two years, the sentences to run concurrently with the balance of the sentence for driving while under the influence. There were no appeals from these sentences.

Finally, on May 5, 1977, Kale entered a counseled plea of guilty to theft by unlawful taking.*fn2 The plea was entered immediately prior to commencement of trial. The charge was explained during the guilty plea colloquy as follows: "In that on or about January 2nd of 1977 you did exercise an unlawful control of removable property of another, namely, a dog valued in the amount of approximately

[ 312 Pa. Super. Page 72]

$150.00, the property of Harold Spangler." On June 20, 1977, he was sentenced to pay a fine, make restitution and was placed on probation for a period of ...


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