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COMMONWEALTH PENNSYLVANIA v. GEORGE W. BROWN (05/10/85)

May 10, 1985

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE W. BROWN, APPELLANT NO. 297



APPEAL FROM THE PCHA ORDER OF SEPTEMBER 23, 1981 IN THE COURT OF COMMON PLEAS OF DAUPHlN COUNTY, CRIMINAL NO. 644, 645, 646 C.D. 1974

Before: Spaeth, P.j., Wickersham, Brosky, Cirillo, Beck, Popovich, and Hester, JJ.

Author: Cirillo

CIRILLO, J.:

Early in 1974, appellant George Walter Brown committed three separate armed robberies, each in the company of an armed cohort, in Dauphin County, Pennsylvania. Pursuant to a plea agreement, Brown pled guilty on September 16, 1974, to three charges of robbery arising from the incidents. The court accepted Brown's pleas and sentenced him to three concurrent terms of five to fifteen years in prison. No direct appeal was taken; however, on December 10, 1974, Brown filed a first petition under the Post Conviction Hearing Act*fn1 (PCHA) alleging that he had been denied the right to representation by competent counsel, that his guilty pleas had been unlawfully induced, and that a right guaranteed him by the constitution or laws of this State had been abridged. The Court of Common Pleas of Dauphin County denied the petition without a hearing, and Brown appealed to the Superior Court. On appeal Brown argued that his original counsel had been ineffective for failing to appeal to challenge (1) the validity of Brown's waiver of the right to a jury trial, and (2) the validity of his guilty plea. The Superior Court affirmed the order of the PCHA court. Commonwealth v. Brown, 242 Pa. Super. 240, 363 A.2d 1249 (1976). We held that Brown had effectively waived his right to trial by jury, and that his contentions on this point were frivolous. We also held that Brown's guilty plea colloquy established conclusively that he had pled guilty validly. Based on these holdings, we went on to hold that Brown's original counsel could not be found ineffective for failing to appeal these issues.

On September 22, 1981, Brown filed his second PCHA petition, alleging the ineffectiveness of both his original counsel and his first PCHA counsel for failing to preserve or argue claims that (1) the criminal informations filed against him were rubber-stamped with a facsimile of the district attorney's signature; (2) the sentencing judge did not put reasons for the sentence on the record in compliance with Commonwealth v. Riqqins, 474 Pa. 115, 377 A.2d 140 (1977); (3) the sentencing judge did not invite him to exercise his allocution rights at sentencing; and (4) the colloquy conducted at his guilty plea hearing was defective. Brown's petition also alleged indigency and requested the appointment of counsel. On September 23, 1981, the Honorable William W. Lipsitt denied Brown's petition without a hearing and without appointing counsel.

An appeal from Judge Lipsitt's order ensued, bringing Brown's case before this Court for the second time. On appeal Brown pursues the first three of the four issues raised in his PCHA petition below. He maintains that with regard to these three issues it was error for the judge to summarily dismiss the petition without a hearing and without appointing counsel.

Preliminarily, we turn our attention to the effect of appellant's guilty plea on the status of his current claims.

Upon entry of a plea of guilty all grounds of appeal are waived except challenges to the voluntariness of the plea, the jurisdiction of the sentencing court, and the legality of the sentence. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981); Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. Whittaker, 292 Pa. Super. 172, 436 A.2d 1207 (1981). The voluntariness of appellant's plea has already been litigated and conclusively decided against him on his first PCHA appeal. Commonwealth v. Brown, supra ; see generally Commonwealth v. Edrington, Pa. Super. , 464 A.2d 456 (1983). Possibly for that reason, appellant does not pursue an attack on his plea. The jurisdiction of the court that sentenced appellant is beyond dispute. Thus, the only remaining issues that survived appellant's plea are challenges to the legality of the sentence. Appellant does raise issues directed against the validity of his sentence, but his claim that the criminal information filed against him was rubber-stamped with a facsimile of the district attorney's signature is not such an issue. Consequently, the rubber stamp issue was waived by appellant's entry of a plea of guilty.

The next principle we should recognize is that issues may be waived if they are not preserved at every stage of the criminal proceedings at which orderly state procedures make it appropriate to raise them. Commonwealth v. Harper, 292 Pa. Super. 192, 436 A.2d 1217 (1981). This principle applies independently of the principle governing waivers attendant upon a plea of guilty. It affects not only appellant's rubber stamp issue, but also his sentencing claims -- that the reasons for his sentence were not put on the record and that he was denied his right to allocution at sentencing. The rubber stamp issue was waived absolutely and irrevocably when the issue was not raised in a pretrial motion. Commonwealth v. Veneri, 306 Pa. Super. 396, 452 A.2d 784 (1982)(en banc); Commonwealth v. Spiegel, 311 Pa. Super. 135, 457 A.2d 531 (1983). Procedural sentencing issues such as appellant's reasons-on-the-record and allocution claims are also waived if not properly preserved. Commonwealth v. Martin, Pa. Super. , 477 A.2d 555 (1984) (en banc) (reasons on the record); Commonwealth v. Tolassi, 303 Pa. Super. 177, 449 A.2d 636 (1982). To be properly preserved such sentencing issues must be raised (1) at the sentencing hearing, (2) after sentencing in a motion to modify sentence, and (3) on appeal from the judgment of sentence. Commonwealth v. Tomasso, 311 Pa. Super. 103, 457 A.2d 514 (1983), aff'd on other grounds, Pa. , 485 A.2d 395 (1984). At none of these stages did appellant mount any attack on the procedure by which he was sentenced.

A third principle worth preliminary mention is the principle of waiver written into the Post Conviction Hearing Act itself. The Act provides that

(b) For the purposes of this act, an issue is waived if:

(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act ; and

(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a ...


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