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COMMONWEALTH PENNSYLVANIA v. LISA RICHARDS (07/29/83)

filed: July 29, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
LISA RICHARDS, APPELLANT



NO. 1039 Pittsburgh 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Erie County, Pennsylvania, Criminal Division at No. 476 of 1981.

COUNSEL

Carmela R.M. Presogna and Elliot Jay Segel, Assistant Public Defenders, Erie, submitted a brief on behalf of appellant.

Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.

Rowley, Popovich and Hoffman, JJ.

Author: Popovich

[ 317 Pa. Super. Page 213]

This is an appeal from the judgment of sentence which was imposed upon appellant, Lisa Richards, after she entered pleas of guilty to charges of aggravated assault*fn1 and retail theft*fn2 pursuant to a plea bargain. We reverse and remand for the reasons herein stated.

The charges involved in the instant appeal stem from appellant's theft of twelve cans of soda pop from a convenience

[ 317 Pa. Super. Page 214]

    store and her use of a steak knife in stabbing a police officer after the arrest. Appellant entered pleas of guilty and was sentenced to a term of imprisonment of not less than two nor more than four years on the aggravated assault conviction. The court suspended sentence on the retail theft conviction. A petition for reconsideration of sentence was denied, and this appeal followed.

In this appeal, appellant raises the following issues: (1) whether the trial court erred when it failed to articulate adequately the reasons for appellant's sentence; (2) whether the trial court abused its discretion in imposing an excessive sentence; and (3) whether trial counsel was ineffective in failing to allege in the petition for reconsideration of sentence that the court had failed to state its reasons for the sentence on the record.

Ordinarily, appellant's failure to assert at sentencing or in her reconsideration petition that the court failed to state on the record its reasons for the sentence would constitute a waiver. See e.g., Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Morris, 273 Pa. Super. 477, 417 A.2d 748 (1979). However, appellant has alleged in her brief on appeal that trial counsel was ineffective for failing to raise the issue in appellant's reconsideration petition.

Before addressing this particular aspect of appellant's contention, we note that at the trial and at the reconsideration of sentence stages, appellant was represented by the Public Defender's Office of Erie County. Additionally, although the designation, "Carmela Presogna, Esquire, 23 West 10th Street, Erie, Pa. 16501," appearing on appellant's brief would seem to indicate that appellant is represented by private counsel, the prosecution asserts that appellant is still represented by the Public Defender's Office. The prosecution states that:

"even though appellate counsel has used the address of her private office on this appeal, she is representing this defendant as a ...


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