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submitted: May 16, 1988.


Appeal from the PCHA November 4, 1987, in the Court of Common Pleas of Butler County, Criminal C.A. No. B384 of 1984, Book 78, Page 403.


Gerard W. Egan, Slippery Rock, for appellant.

Robert F. Hawk, Assistant District Attorney, Butler, for Com., appellee.

Olszewski, Watkins and Cercone, JJ.

Author: Olszewski

[ 376 Pa. Super. Page 435]

This is an appeal from the denial of appellant's Post Conviction Hearing Act (PCHA) petition. Appellant asserts that the PCHA court erred in dismissing the petition because trial counsel was ineffective for failing to: (1) ensure that appellant knowingly and intelligently entered his plea of nolo contendere; and (2) file a motion to modify or vacate sentence based upon the imposition of restitution in violation of the plea agreement and without a hearing regarding appellant's ability to pay. For reasons discussed below, we affirm in part and reverse and remand in part.

On April 9, 1984, appellant was arrested and charged with twenty counts of burglary. At his July 2, 1984, arraignment, pursuant to a plea agreement, appellant pleaded nolo contendere to the twenty counts of burglary in exchange for an eleven-to-twenty-two-year sentence to run concurrent with an unrelated sentence. Appellant also executed a form entitled "Waiver of Further Proceedings Upon Arraignment, With Petition to Enter Plea of Nolo Contendere." The trial court accepted appellant's plea, conducted a plea colloquy, and subsequently sentenced appellant to

[ 376 Pa. Super. Page 436]

    eleven to twenty-two years and to pay restitution in the amount of twenty-one thousand seven hundred seventy-one dollars.

On November 8, 1984, appellant filed an application for discharge from payment of restitution, which the trial court denied. On November 13, appellant filed a pro se request for reconsideration of his sentence, which was also dismissed by the trial court as untimely. Appellant sought permission to file an appeal nunc pro tunc for reconsideration of his sentence on February 14, 1985. The trial court denied this motion on February 19, 1985.

On May 31, 1985, appellant filed a PCHA petition. An amended petition was filed by appointed counsel on July 8, 1985. Following an evidentiary hearing, the trial court denied appellant's petition on November 4, 1987. This appeal followed.

When evaluating ineffective assistance of counsel claims, our Court follows a three-pronged analysis. First, we must determine if the underlying claim has arguable merit. Commonwealth v. Gass, 514 Pa. 287, 289, 523 A.2d 741, 742 (1987). If the claim is of arguable merit, we must evaluate the reasonableness of counsel's action or inaction. Id. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to appellant. Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865, 871-72 (1986), quoting Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605 n. 8, 235 A.2d 349, 353 n. 8 (1967).

With these standards to guide us, we evaluate appellant's claim that trial counsel was ineffective for failing to ensure that appellant's plea of nolo contendere was voluntary and intelligent. We have declared that a plea of nolo contendere is treated the same as a guilty plea in terms of its effect upon a particular case. Commonwealth v. Thomas, 351 Pa. Super. 423, 506 A.2d 420 (1986), citing Commonwealth v. Hayes, 245 Pa. Super. 521, 369 A.2d 750 (1976); Commonwealth v. Warner, 228 Pa. Super. 31, 324 A.2d 362 (1974). Therefore, in reviewing the validity of appellant's plea, we are guided by the following principles:

[ 376 Pa. Super. Page 437]

What plea to enter must be a decision by the accused which is voluntarily and intelligently made. Commonwealth v. Forbes, [450 Pa. 185, 299 A.2d 268 (1973)]. Pa.R.Crim.P. 319 outlines a procedure to be followed that will assure the guilty plea is voluntarily tendered. No more than the inquiries outlined in Pa.R.Crim.P. 319 is required. Commonwealth v. Anthony, [504] Pa. [551], 475 A.2d 1303 (1984).

Commonwealth v. Kay, 330 Pa. Super. 89, 93, 478 A.2d 1366, 1369 (1984).

Pa.R.Crim.P. 319 provides in pertinent part:

(a) Generally. Pleas shall be taken in open court. A defendant may plead not guilty, guilty, or with the consent of the court, nolo contendere. The judge may refuse to accept a plea of guilty, and shall not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record. If the ...

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