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COMMONWEALTH PENNSYLVANIA v. ELMER WILSON CLARK (07/03/86)

filed: July 3, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ELMER WILSON CLARK, APPELLANT



Appeal from Order of the Court of Common Pleas, Criminal Division, of Somerset County, nos. 192, 193 & 257a Criminal, 1981.

COUNSEL

Sandra W. Upor, Somerset, for appellant.

George B. Kaufman, Assistant District Attorney, Somerset, for Commonwealth, appellee.

Shaulis, J. Wieand, Popovich and Lipez, JJ. Lipez, J., files a dissenting Opinion.

Author: Wieand

[ 354 Pa. Super. Page 368]

Elmer Wilson Clark, on August 13, 1981, entered pleas of guilty to forgery, criminal attempt to cash a forged check and escape. He was sentenced to serve a term of imprisonment for not less than six years nor more than fourteen years. On January 19, 1983, Clark filed a P.C.H.A. petition in which he alleged that he had been denied his right of allocution. The petition was twice amended to include averments (1) that the sentencing court had failed to state adequate reasons for the sentence; (2) that the guilty plea court had failed to explain the elements of the crime of escape; and (3) that prior counsel had been ineffective for failing to raise these issues. Counsel was appointed to represent Clark, but the P.C.H.A. petition was denied without hearing. This appeal followed. We affirm.

The allocution issue was lacking in merit and did not require an evidentiary hearing. At sentencing, the court specifically asked Clark, "Is there anything else to be said?" to which Clark replied, "No, sir." This constituted full compliance with Pa.R.Crim.P. 1405(a). We have also examined the reasons for the sentence which the court imposed and find them adequate. Counsel was not ineffective for failing to pursue this issue in a motion to modify sentence.*fn1

It is correct, of course, that "a guilty plea is valid only if the defendant understands the nature of the charges brought against him." Commonwealth v. Campbell, 309 Pa. Super. 214, 218, 455 A.2d 126, 128 (1983). However,

[ 354 Pa. Super. Page 369]

    an esoteric explanation of the elements of the crime is not necessarily a prerequisite to constitutional validity of a guilty plea in all circumstances. The "true constitutional imperative is that the defendant receive 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.'" [ Commonwealth v. Shaffer, 498 Pa. 342, 350, 446 A.2d 591, 595 (1982)], quoting Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108, 114 (1976). Whether notice has been adequately imparted may be determined from the totality of the circumstances attendant upon the plea, Shaffer [446 A.2d] at 595, see also Commonwealth v. Morales, 452 Pa. 53, 305 A.2d 11 (1973), Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968).

Commonwealth v. Martinez, 499 Pa. 417, 420, 453 A.2d 940, 942 (1982).

In the instant case, the guilty plea colloquy with respect to escape was as follows:

Q. And in the third case, No. 257 Criminal 1981, in which you are charged with Escape, a Felony of the third degree; did you Escape from the Somerset County Jail while you were imprisoned on that charge?

A. Yes, sir.

Q. Tell me how you escaped.

A. Well, I climbed up over the fense [sic] and down over the wall.

Q. From the roof?

A. Yes, sir.

Q. Did you have any authority to leave?

A. No, sir.

Q. Were you imprisoned there on this charge?

A. Yes, sir.

Q. Well, that is the other check charges.

A. Yes.

[ 354 Pa. Super. Page ...


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