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COMMONWEALTH PENNSYLVANIA v. OTTO MARTIN JENSCH (07/28/83)

submitted: July 28, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
OTTO MARTIN JENSCH, APPELLANT



No. 1714 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Berks County, at No. 77071601-4.

COUNSEL

William R. Bernhart, Reading, for appellant.

George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.

Rowley, Beck and Montemuro, JJ.

Author: Montemuro

[ 322 Pa. Super. Page 308]

Before us is an appeal from the judgment of sentence of the Court of Common Pleas of Berks County entered against the appellant, Otto Martin Jensch. The appellant was convicted, after a jury trial, of one count of possession with intent to deliver a controlled substance*fn1 (marijuana), and one count of delivery of a controlled substance*fn2 (marijuana). The appellant's post-verdict motions were denied and on June 4, 1981, the appellant was sentenced to concurrent sentences of imprisonment of one (1) to three (3) years and a fine of five hundred ($500.00) dollars. Appellant filed a timely appeal from that judgment.

The appellant presents five issues for our consideration. After reviewing his arguments, we find no error and consequently affirm the judgment of the trial court.

The appellant's first contention is that the trial court erred in not dismissing the charges against the appellant as a consequence of a violation of Pa.R.Crim.P. 1100. We disagree. The procedural history of this case, while lengthy and complicated, fails to reveal any violation of Rule 1100.

The relevant history begins on January 11, 1980 when this court, acting on an appeal from the appellant's first

[ 322 Pa. Super. Page 309]

    trial, reversed the judgment and remanded for a new trial, Commonwealth v. Jensch, 274 Pa. Super. 166, 418 A.2d 399 (1980). According to the docket entries, the certified record was remanded on February 14, 1980. Prior to the remand of the record, the Commonwealth scheduled appellant's new trial for February 10, 1980 (See note 3, infra). On February 5, 1980, defense counsel filed a motion for continuance until March 10, 1980. The motion form included a waiver of Rule 1100 which was signed by appellant and counsel. The appellant filed two more continuance motions: one on March 10 requesting a continuance until March 21; and one on March 17 requesting a continuance until April 18, 1980. Each contained the waiver provision and each was signed by appellant and counsel.

On June 17, 1980, pursuant to a negotiated plea, the appellant entered a plea of guilty to the charge of delivery of a controlled substance. Sentencing was deferred. On July 11, 1980, and September 5, 1980, sentencing was again deferred because the district attorney was not present. On September 25, the trial judge informed the appellant that he refused to accept the negotiated plea. He instructed defense counsel to file a petition to withdraw the plea. Defense counsel filed the petition on October 2, 1980.

The guilty plea was stricken on November 3, 1980. On December 9, 1980, following a hearing in which the Honorable Warren K. Hess denied appellant's motion to dismiss under Pa.R.Crim.P. 1100(f); a jury was sworn and the case proceeded to trial. That same day a mistrial was granted.

Finally on March 10, 1981, the case proceeded to trial before the Honorable W. Richard Eshelman and a jury. The trial culminated in a jury verdict on March 12, 1981.

Based on this procedural history we conclude that there has been no violation of Rule 1100. We discern four intervals in the procedural history, ...


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