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COMMONWEALTH PENNSYLVANIA v. WILLIAM KIOSKE (01/18/85)

filed: January 18, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM KIOSKE, APPELLANT



No. 00631 Philadelphia 1983, Appeal from the Order entered in the Court of Common Pleas of Luzerne County, Criminal Division, at No. 628-628A-B-C, 631-636, 639, 647-649, 648A, 655, 655A. B, 658-661, 670, 1108-1122, 1120A, 1214-1217, 1220-1223, 1225-1232, 1221A, 1234, 1465, 1466, 1506-1508, 1511-1518, 1517A, 1520-1521, 1524-1527, 1535, all of 1981.

COUNSEL

Lawrence D. MacDonald, Wilkes-Barre, for appellant.

Joseph C. Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Montemuro, Cercone and Hester, JJ.

Author: Montemuro

[ 337 Pa. Super. Page 595]

On March 24, 1982, appellant, William Kioske, pled guilty before the Honorable Bernard J. Podcasy, of the Court of Common Pleas of Luzerne County, to sixty-eight (68) counts of burglary,*fn1 sixty-four (64) counts of theft,*fn2 fifty-six (56) counts of criminal conspiracy,*fn3 two (2) counts of receiving

[ 337 Pa. Super. Page 596]

    stolen property,*fn4 one (1) count of criminal mischief,*fn5 and one (1) count of criminal attempt.*fn6 Immediately prior to sentencing, on January 11, 1983, appellant made an oral motion to withdraw his guilty plea. Following arguments on the matter, appellant's motion was denied.

Appellant was sentenced to seven (7) consecutive terms of imprisonment: six (6) one to ten (1-10) year terms and one (1) one and one-half to twenty (1 1/2-20) year term. Appellant filed a timely post-sentence motion to withdraw his guilty plea and/or to modify the sentences imposed. A hearing was held on this motion on February 3, 1983, at the conclusion of which, the motion was denied. This appeal followed.

Appellant argues: (1) that the lower court erred in taking "judicial notice" that substantial prejudice would result to the Commonwealth if appellant's pre-sentence motion to withdraw his guilty plea was granted; (2) that the lower court erred in "summarily" denying appellant's pre-sentence motion to withdraw his guilty plea; (3) that the sentences imposed did not conform to the plea agreement accepted by the lower court; and (4) that the lower court erred in imposing restitution without a specific finding of appellant's ability to make restitution and in allegedly delegating the determination of amounts of restitution.

We affirm in part and reverse and remand in part.

We begin our opinion with a discussion of appellant's second assignment of error for the reason that our disposition of the issues raised therein renders any discussion of ...


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