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COMMONWEALTH PENNSYLVANIA v. JEFFREY MULLER (04/02/84)

submitted: April 2, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
JEFFREY MULLER, APPELLANT



No. 90 Philadelphia, 1983, Appeal from the Order dated November 29, 1982, Court of Common Pleas, Montgomery County, Criminal Division at Nos. 3216, 3393, 3394, 3416, 3504 of 1981.

COUNSEL

Suzanne B. Ercole, Pottstown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Wieand, Johnson and Lipez, JJ. Wieand, J. filed a dissenting opinion.

Author: Johnson

[ 334 Pa. Super. Page 232]

Appellant appeals from the order which denied his motion to withdraw his guilty pleas nunc pro tunc and amended the previously imposed sentences on two forgery counts. We affirm.

Appellant pled guilty to seven counts each of forgery,*fn1 theft by deception*fn2 and receiving stolen property.*fn3 He was sentenced to concurrent terms of four to ten years on two of the forgery counts and five years concurrent probation on two other forgery counts. Appellant then filed a pro se notice of appeal to this court and counsel was appointed to represent him. Counsel discontinued the appeal and filed a Motion to Vacate Illegal Sentence and/or Motion to Withdraw Guilty Plea Nunc Pro Tunc, correctly alleging that the pleas on the forgery counts were properly of the third degree and not the second degree, as set forth in the guilty plea colloquy. As a result, appellant's four to ten year sentences were reduced to three and one-half to seven years. The remaining sentences were not altered and appellant's request to withdraw the pleas was denied. Following the denial of a motion to modify sentence, this appeal followed.

Three issues are raised on appeal: (1) whether the guilty pleas were knowingly, intelligently and voluntarily entered when appellant was incorrectly advised of the grade of the forgery charges, (2) whether the sentence was excessive, and (3) whether sentencing counsel was ineffective for failing to produce certain mental health reports and recommendations at the original sentencing hearing.

Regarding the first issue, appellant did not challenge the validity of his pleas prior to sentence, pursuant to Pa.R.Crim.P. 320, nor did he file a timely post-sentence motion to withdraw his pleas, as required by Pa.R.Crim.P. 321(a). Generally, the failure to file such a post-sentence motion is considered a waiver of the right to challenge the

[ 334 Pa. Super. Page 233]

    validity of the plea on appeal, provided the court has informed him of his right to file said motion. Commonwealth v. Cavanaugh, 500 Pa. 313, 456 A.2d 145 (1983). In the instant case, appellant was fully informed of this right at the plea colloquy. However, Pa.R.Crim.P. 1405(c)(2) and (3) require the sentencing judge, at time of sentence, to inform the defendant of his right to file motions challenging the validity of his guilty plea and of the ten-day time limit in which to file the motions. Instantly, the sentencing court failed to so advise appellant. While appellant had actual knowledge of the necessity and time limitations surrounding the filing of a post-sentence motion to withdraw his pleas, the language in Rule 1405(c) makes clear that informing a defendant of the motion requirements is mandatory.*fn4

Hence, appellant did not waive his right to file his withdrawal motion nunc pro tunc. See Commonwealth v. Vigue, 279 Pa. Super. 46, 420 A.2d 736 (1980); see also Commonwealth v. Warner, 306 Pa. Super. 73, 452 A.2d 9 (1982).

Appellant contends that the trial court erred in refusing to allow withdrawal of his guilty pleas, as the pleas were not knowingly, intelligently or voluntarily entered. This argument is based on the fact that appellant was misinformed as to the correct grade of the crime and statutory penalties for forgery.

When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing,*fn5 a showing

[ 334 Pa. Super. Page 234]

    of prejudice on the order of manifest injustice is required before withdrawal is properly authorized. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). A defendant incurs manifest injustice upon the court's denial of his motion to withdraw where the pleas were entered involuntarily or without knowledge of the charge. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Campbell, 309 Pa. Super. 214, 455 A.2d 126 (1983). Therefore, the defendant must make some demonstration that the plea was not voluntary or was entered without knowledge of the charge. Commonwealth v. Shaffer, supra. See also Commonwealth v. Johnson, 273 Pa. Super. 488, 417 A.2d 753 (1979) (burden on defendant to prove plea involuntary so as to warrant post-sentence withdrawal). The ...


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