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COMMONWEALTH PENNSYLVANIA v. CHARLES SIERS (08/19/83)

filed: August 19, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES SIERS, APPELLANT



No. 2427 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Section, Trial Division, of Philadelphia County, No. 78-04-1869-76.

COUNSEL

John J. Poserina, Philadelphia, for appellant.

Richard P. Myers, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Rowley and Montgomery, JJ. Brosky, J., files a concurring opinion.

Author: Rowley

[ 318 Pa. Super. Page 217]

This is a direct appeal from an order denying appellant's post-sentence petition to withdraw his pleas of guilty to three counts of robbery*fn1 and one count of knowingly or

[ 318 Pa. Super. Page 218]

    intentionally possessing a controlled substance. Appellant pled guilty on July 28, 1978, and was sentenced on September 19, 1978, to concurrent terms of imprisonment of six to twenty years on each robbery charge. Appellant's sentence on the possession count was suspended. Thereafter, appellant filed a motion to withdraw his guilty pleas along with a petition to reconsider his sentences on the robbery charges. Upon reconsideration, appellant's sentences were modified and concurrent terms of imprisonment of six to twelve years were imposed. Appellant's petition to withdraw his guilty pleas, however, was denied. This direct appeal followed.

In considering appellant's appeal, we emphasize that there is an important distinction between pre-sentencing and post-sentencing attempts to withdraw a guilty plea. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Herberg, 306 Pa. Super. 245, 452 A.2d 536 (1982). "[A] showing of prejudice on the order of manifest injustice" is required before withdrawal of a guilty plea on a post-sentence petition can be justified. Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). This substantial burden of proof is imposed because of the recognition that a plea and its subsequent withdrawal may be used by the accused as a sentence-testing device. Id., 450 Pa. at 489, 301 A.2d at 594. Consequently, before a post-sentence petition to withdraw a guilty plea will be granted under the "manifest injustice" standard, some demonstration must be made that the plea was involuntary. Commonwealth v. Bhillips, 475 Pa. 427, 380 A.2d 1210 (1977).

Appellant states the issues on appeal as follows:*fn2

I. Should defendant [sic] be permitted to withdraw his guilty plea[s]?

[ 318 Pa. Super. Page 219]

II. Is the system of assigning Judges to hear criminal cases in Philadelphia, unconstitutional in its application, by coercing ...


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