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COMMONWEALTH PENNSYLVANIA v. JOSEPH M. ZAZO (01/20/84)

submitted: January 20, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH M. ZAZO, APPELLANT



No. 2636 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Berks County, Nos. 80138501 and 8013920.

COUNSEL

Scott E. Lash, Wyomissing, for appellant.

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

Brosky, Wieand and Hester, JJ.

Author: Wieand

[ 330 Pa. Super. Page 388]

Joseph M. Zazo entered pleas of guilty to separate charges of burglary*fn1 and robbery*fn2 and was sentenced to concurrent terms of not less than ten nor more than twenty years in prison. He did not file timely appeals from the judgments of sentence. He is presently before this Court by authority of an order of the Court of Common Pleas of Berks County permitting an appeal nunc pro tunc. On this direct appeal, his only contention is that he should be permitted to file a motion to withdraw his pleas of guilty under Pa.R.Crim.P. 320 nunc pro tunc, i.e., as if filed prior to sentencing. For reasons hereinafter set forth, we reject appellant's request and affirm the judgment of sentence.

Appellant's request to withdraw his plea of guilty under Pa.R.Crim.P. 320 has never been made to the trial court. It is made for the first time in the brief which his counsel has filed in this Court. This brief, however, contains no reason that would be sufficient to support a motion to withdraw appellant's guilty pleas, either before or after sentencing.

[ 330 Pa. Super. Page 389]

His only contention is that guilty plea counsel was ineffective for failing to tell him that he had a right, under Pa.R.Crim.P. 320, to make such a request. The language of the brief concedes appellant's guilt and complains only that the sentences were excessive. Thus, at page 19 of appellant's brief the following appears:

The purpose of the above discussion was not to make excuses for the acts committed by the Defendant or to rationalize his behavior. The Defendant has committed crimes of a serious nature and society has the right to expect that these crimes will not go unpunished. However, while punishment may be in order, excessive punishment is a miscarriage of justice.

In support of his contention that he should now be permitted to file a motion to withdraw his pleas as though such motion had been filed prior to sentencing, appellant asserts that his guilty plea counsel was ineffective for failing to tell him that he could file a pre-sentencing motion under Pa.R.Crim.P. 320 to withdraw his guilty pleas.

"Knowledge of the procedural aspects of the right to withdraw the guilty plea does not bear upon whether it was voluntary in the first instance." Commonwealth v. Chumley, 482 Pa. 626, 639-640, 394 A.2d 497, 504 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979). This Court pronounced the same principle even more forcefully in Commonwealth v. Klinger, 323 Pa. Super. 181, 470 A.2d 540 (1983), when it said: "It would be absurd to hold that a guilty plea is involuntary or unknowing if the defendant is not told beforehand that after entering the plea he will be allowed to withdraw it." Id., 323 Pa. Superior Ct. at 198, 470 A.2d at 549. It would be equally absurd to hold that guilty plea counsel is required, upon threat of being found ...


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