Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Lawrence County, No. 642A of 1985.
Manuel Martinez, in propria persona.
Thomas W. Minett, Assistant District Attorney, Ellwood City, for Com., appellee.
Wieand, McEwen and Hoffman, JJ.
[ 372 Pa. Super. Page 204]
This is an appeal from an order dismissing a P.C.H.A. petition after hearing. Although appellant was represented by counsel during the P.C.H.A. hearing, his brief in this Court has been filed pro se. He contends that he is entitled to be re-sentenced or, in the alternative, that he should be allowed to withdraw his plea of guilty. We hold that he is entitled to be re-sentenced and remand for that purpose.
Manuel Martinez was charged with aggravated assault and attempted rape as a result of an incident occurring on May 26, 1985, in which Amanda Sager was struck repeatedly,
[ 372 Pa. Super. Page 205]
and thrown down a forty-foot high embankment. On December 12, 1985, while represented by counsel, Martinez entered a negotiated plea of guilty to aggravated assault. As part of the plea agreement, Martinez withdrew a pending omnibus pre-trial motion in which he had asked the court to suppress an inculpatory statement made while he was in police custody. In exchange, the Commonwealth agreed to nol pros the charge of attempted rape and make no recommendation as to the sentence to be imposed for aggravated assault. Subsequent testimony disclosed that it had been Martinez's intent to seek the mercy of the court. On February 5, 1986, Martinez was sentenced to prison for the maximum term of not less than five years nor more than ten years.
Martinez did not thereafter seek to withdraw his plea of guilty. However, he did file a motion requesting the court to reconsider the sentence. Contained therein, inter alia, was an averment that the Commonwealth had breached the terms of its agreement to make no recommendation as to the sentence to be imposed. The motion to reconsider the sentence was denied on February 14, 1986, and Martinez filed a direct appeal from the judgment of sentence. When his counsel failed to file a brief, however, the appeal was dismissed by a per curiam order which recited that it was "without prejudice to Appellant's rights under the Post Conviction Hearing Act."
A P.C.H.A. petition was filed on September 19, 1986; counsel was appointed; and an evidentiary hearing was held on January 13, 1987. The petition was thereafter taken under advisement by the court and denied on June 25, 1987. This appeal followed. Martinez argues (1) that his plea of guilty was involuntary because it was induced by a confession which had been obtained unlawfully; (2) that guilty plea counsel was ineffective because he had promised Martinez that if he pleaded guilty he would be sentenced to prison for not less than three years nor more than six years; and (3) that the District Attorney had violated the agreement to make no recommendation as to sentence when he
[ 372 Pa. Super. Page 206]
told the court that persons interested in the case were requesting the court to ...