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COMMONWEALTH PENNSYLVANIA v. GARY ALLEN CASNER (05/27/83)

decided: May 27, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY ALLEN CASNER, A/K/A GARY ROSSMAN, A/K/A GARY ROZIER, APPELLANT



No. 120 Harrisburg 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Mifflin County at No. 25 of 1978.

COUNSEL

Peter J. O'Donnell, Lewistown, for appellant.

William A. Helm, District Attorney, Lewistown, for Commonwealth, appellee.

Cavanaugh, Wickersham and Montemuro, JJ.

Author: Wickersham

[ 315 Pa. Super. Page 15]

This case comes to us after President Judge R. Lee Ziegler of the Mifflin County Court of Common Pleas denied Gary Allen Casner's petition for relief pursuant to the Post Conviction Hearing Act.*fn1 Casner pleaded guilty to a charge of robbery on May 9, 1978. A sentence of two and one-half to five years imprisonment was imposed on August 16, 1978.

Casner filed a pro se petition under the Post Conviction Hearing Act; appointed counsel filed an amended PCHA petition. The court below conducted hearings on Casner's petition. At these hearings Casner testified, as did the public defender who represented Casner up to the time of sentencing. On April 30, 1980, Judge Ziegler denied Casner's petition; this appeal timely followed.

The facts underlying Casner's conviction were developed at Casner's guilty plea hearing and may be summarized as follows. A police officer testified that on December 31, 1977, at about six-thirty in the evening he was called to investigate a robbery complaint. The victim of the crime told the police officer that a man pushed his way into her home. Once inside the man told her he was a government agent investigating a murder and that he would have to search the house. When the victim challenged the intruder, he took some money and a wallet from her. There was a brief struggle over the wallet; the man pushed the victim, took the wallet again and fled. The police officer stated that the victim was shaken and upset when he arrived.

[ 315 Pa. Super. Page 16]

The victim of the crime also testified at the guilty plea hearing. The victim said that the man who took her money struck her in the face and threw her about the room. As the man left her home, he said he would come back and kill her.

When a defendant enters a guilty plea the only legally cognizable issues in a post conviction proceeding are those which affect either the voluntariness of the guilty plea or the legality of the sentence. Moreover, a challenge to the voluntariness of the guilty plea will not be entertained in the absence of a motion to withdraw the plea in the trial court. Commonwealth v. Harris, 492 Pa. 381, 386 n. 2, 424 A.2d 1242, 1244 n. 2 (1981). Casner has not filed a motion to withdraw his guilty plea but the rule announced in Harris, id., is not applicable to this case.

In Commonwealth v. Miller, 495 Pa. 177, 179-80, 433 A.2d 1, 2 (1981) the Pennsylvania Supreme Court said:

Ordinarily a party on appeal who seeks to challenge a guilty plea must first have filed a motion to withdraw the plea in the court where it was entered . . . . However, where as here, an appellant attacks a plea of guilty on the basis that trial counsel's ineffectiveness contributed to the plea and where appellant was represented post-trial by the same counsel, we have permitted appellate review of the claim on the merits.

(Footnotes and citations omitted). See also, Commonwealth v. Williams, 496 Pa. 486, 437 A.2d 1144 (1981).

Casner has alleged that ineffectiveness of his trial counsel caused the entry of an involuntary plea and his present PCHA petition is the first time he has had different counsel. Therefore, his claims are properly before this court. Commonwealth v. Swift, 299 Pa. Super. 77, 81 n. 2, 445 A.2d 156, 157 n. 2 (1982); Commonwealth v. Weiss, 289 Pa. Super. 1, 4, ...


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