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COMMONWEALTH PENNSYLVANIA v. REGINALD PELZER (07/27/83)

submitted: July 27, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
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

COUNSEL

Michael H. VanBuskirk, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Rowley, Beck and Montemuro, JJ.

Author: Beck

[ 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a speedy revocation of probation hearing in violation of Pa.R.Crim.P. 1409,*fn1 and that his guilty plea should be withdrawn because the lower court failed to inform him of the range of possible sentences at the time of the plea colloquy.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 ...


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