submitted: July 27, 1983.
COMMONWEALTH OF PENNSYLVANIA
REGINALD PELZER, APPELLANT
NO. 578 PHILADELPHIA, 1982, Appeal from the PCHA Order of January 11, 1982, in the Court of Common Pleas of Philadelphia County, Criminal at No. 1100 July Term, 1973
Michael H. VanBuskirk, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Rowley, Beck and Montemuro, JJ.
[ 319 Pa. Super. Page 285]
Reginald Pelzer raises two issues in this appeal: that he was denied a speedy revocation of probation hearing in violation of Pa.R.Crim.P. 1409,*fn1 and that his guilty plea should be withdrawn because the lower court failed to inform him of the range of possible sentences at the time of the plea colloquy. We find the first issue without merit and the second issue waived. Accordingly, we affirm the order of the court below.
The facts giving rise to this appeal go back to June 1973 when Pelzer was arrested and charged with two counts of burglary and related offenses. In February 1974 he offered a counseled guilty plea to the burglary charges and received a sentence of ten years probation. At this time the sentencing court informed him: "I'm accepting this recommendation but if you come back before this Court, you're going to go to jail and you're going to go for a long period of time" (N.T. 13, February 14, 1974). No appeal was taken from this sentence.
Five years later, in May 1979, Pelzer was convicted in a bench trial of rape, burglary, indecent assault, simple assault, and possessing instruments of crime. In February 1980 he was sentenced to ten to twenty years for rape, ten to twenty years for burglary, and two and one half to five years for possessing instruments of crime, all sentences to run concurrently. On direct appeal, judgment of sentence was affirmed. Commonwealth v. Pelzer, 297 Pa. Super. 584, 441 A.2d 785 (1982).
One month after sentence was imposed for the rape and burglary offenses, a violation of probation hearing was held
[ 319 Pa. Super. Page 286]
on March 26-27, 1980. Pelzer was found in violation of probation and sentenced to ten to twenty years, the sentence to run consecutively to the sentences imposed in February 1980. No appeal was taken within the initial time period for doing so.
On January 1, 1981 Pelzer filed a pro se Post Conviction Hearing Act Petition, amended with assistance of new counsel on August 13, 1981. In this Petition, Pelzer claims that his violation of probation hearing was untimely. The lower court granted the right to appeal nunc pro tunc from the sentence imposed on March 27, 1980 on the issue of the timeliness of the hearing.
In the Petition Pelzer also claims that he was denied effective assistance of counsel at the time his guilty plea was entered in 1974 because he was never informed of the maximum sentence for the burglary offenses in the event that probation should be revoked. On this issue the lower court denied relief. The appeal nunc pro tunc from judgment of sentence in 1980 and the denial of relief relating to the 1974 guilty plea are here combined.
The claim of the Rule 1409 violation fails for the following reasons. The law is well settled that when probation violation is based upon a crime which occurs during the period of probation, for Rule 1409 purposes the focus is on the time between the conviction and the violation hearing. Commonwealth v. Honeyblue, 267 Pa. Super. 107, 419 A.2d 118 (1980); Commonwealth v. Jones, 250 Pa. Super. 116, 378 A.2d 481 (1977). In Pelzer's case, this period was ten months. Pelzer relies heavily on Commonwealth v. White, 218 Pa. Super. 188, 279 A.2d 768 (1971) where a delay of five months was found too lengthy to satisfy the Rule. However, a quantitative approach, i.e. merely counting the days and months between conviction and parole violation hearing, is not determinative in Rule 1409 cases.
Neither White nor the requirements of Rule 1409 establish a prophylactic cut-off whereby timeliness is determined. Commonwealth v. Nance, 290 Pa. Super. 312, 434
[ 319 Pa. Super. Page 287]
A.2d 769 (1981); Commonwealth v. Long, 264 Pa. Super. 465, 400 A.2d 179 (1979) (parole violation); Commonwealth v. Young, 262 Pa. Super. 253, 396 A.2d 741 (1978). The requirement of a speedy revocation hearing means that the courts must act with reasonable promptness once officials are aware of parole violation. Commonwealth v. Williams, 254 Pa. Super. 202, 385 A.2d 979 (1978); Commonwealth v. Johnson, 277 Pa. Super. 88, 419 A.2d 674 (1980).
The primary purpose of a prompt revocation hearing is to prevent the loss of essential witnesses or documentary evidence, and to avoid the continuance of unnecessary incarceration or other limitations of the personal liberty of the accused. Commonwealth v. Jones, supra; Commonwealth v. Johnson, supra. To determine whether there has been reasonable promptness for purposes of Rule 1409 courts look to three factors: the length of the delay, the reasons for the delay, and the prejudice to the defendant as a result of the delay. Commonwealth v. Nance, supra; Commonwealth v. Young, supra; Commonwealth v. Diaz, 258 Pa. Super. 346, 392 A.2d 827 (1978); Commonwealth v. Ruff, 272 Pa. Super. 50, 414 A.2d 663 (1979); Commonwealth v. Sanders, 303 Pa. Super. 139, 449 A.2d 617 (1982); Commonwealth v. Gaus, 300 Pa. Super. 372, 446 A.2d 661 (1982).
An analysis of the circumstances surrounding Pelzer's violation of probation hearing leads us to conclude that the rule of reasonable promptness has not been violated. While it is true that in White, supra, the Court found a five month delay too long, in that case the hearing was held after the end of the probationary period, a factor which influenced the decision. See also Commonwealth v. Williams, supra, (five month delay in White unreasonable because the original probationary period expired before the hearing). In Pelzer's case, by contrast, even after the passing of ten months subsequent to the conviction on the rape and burglary charges, the revocation hearing took
[ 319 Pa. Super. Page 288]
place a year before the termination of the ten year probation imposed for the 1973 burglaries.*fn2
The length of this delay, without more, does not constitute grounds for reversal of the sentence. Pelzer makes no claim that the ten month period impeded his defense. Indeed, his counsel testified that he had no intention of calling witnesses at the probation violation hearing (N.T.P.C.H.A. Hearing, at 30). There was no averment that evidence which would have aided the defense had been lost as a result of passing time. Moreover, Pelzer's counsel testified that it was his practice to delay revocation hearings until after sentence was imposed for the violating offense in the hopes that the sentence for the violation would be thereby mitigated (N.T.P.C.H.A. Hearing, at 28). See Commonwealth v. Long, supra (not unreasonable for the lower court to delay revocation hearing until appellant was sentenced on other charges) (Judges Jacobs and Spaeth dissenting).
[ 319 Pa. Super. Page 289]
Finally, we note that for the entire period in question, Pelzer was in prison for the rape conviction of 1980. On the issue of prejudice, a probation violator who is incarcerated for another offense does not suffer any loss of freedom from the delay in holding the revocation hearing because he is already in prison. Commonwealth v. Diaz, supra; Commonwealth Page 289} v. Gaus, supra; Commonwealth v. Ballard, 292 Pa. Super. 129, 436 A.2d 1039 (1981).
We conclude that because the revocation was held within the probationary period, because Pelzer has not shown that his defense at the hearing was hampered by the passing of ten months, and because he was in prison for the entire time on the other charges the scheduling of his revocation hearing was not in violation of Rule 1409.
We now consider the second issue in this appeal, i.e. the claim that Pelzer's guilty plea was defective because he was not apprised of the maximum sentence possible should he violate probation. Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) established the rule that in a guilty plea colloquy the defendant must be informed, inter alia, of the permissible range of sentences. Pelzer claims in his P.C.H.A. Petition that he was not specifically informed of the maximum sentence for burglary, and therefore his guilty plea must be withdrawn. However, Pelzer neither filed post-trial motions challenging his guilty plea nor averred any extraordinary circumstances (such as ineffectiveness of counsel for failing to file post-trial motions) which would explain his failure to do so. The issue is therefore waived. 19 P.S. 1180-3(d); Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979) (Justices Nix and Manderino dissenting); Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980); Commonwealth v. Jumper, 494 Pa. 451, 431 A.2d 941 (1981); Commonwealth v. Senk, 496 Pa. 630, 437 A.2d 1218 (1981); Commonwealth v. Baylor, 279 Pa. Super. 304, 420 A.2d 1346 (1980); Commonwealth v. Knox, 304 Pa. Super. 368, 450 A.2d 725 (1982).*fn3
For the appeal nunc pro tunc from judgment of sentence of March 27, 1980 judgment of sentence is affirmed; and
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the order of the lower court denying petitioner relief under the P.C.H.A. is affirmed.