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COMMONWEALTH PENNSYLVANIA v. MARVIN PHILLIPS (05/31/88)

filed: May 31, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
MARVIN PHILLIPS, APPELLANT



Appeal from the Orders entered June 24, 1987 at Nos. 353, 325 and 232 of 1987 and the Judgments of Sentence entered July 20, 1987 at Nos. 232, 325, and 353 of 1987 in the Court of Common Pleas of Erie County, Criminal Division.

COUNSEL

William T. Morton, Assistant District Attorney, Erie, for Com., appellee.

James A. Pitonyak, Erie, for appellant.

Brosky, Wieand and Del Sole, JJ. Wieand, J., concurs in the result. Brosky, J., files a concurring opinion.

Author: Del Sole

[ 374 Pa. Super. Page 221]

Presented for our review are consolidated appeals from a Judgment of Sentence directing that Appellant be incarcerated for a period totaling 7 1/2-15 years and from an order denying Appellant's motion to withdraw his guilty plea. On appeal Appellant contends that the court erred in imposing an excessive sentence and that the court improperly refused to permit him to withdraw a guilty plea which was not voluntarily or understandingly entered.

We will begin by examining Appellant's challenge to the entry of his guilty plea. Listed for our consideration are numerous allegations which Appellant contends would warrant a grant of his motion to withdraw the plea or an evidentiary hearing on this motion. Specifically Appellant alleges that counsel failed to inform him that he could receive consecutive sentences, that his prior juvenile adjudications would impact on his prior record score and that the arresting officer would not be subpoenaed to testify on his behalf at sentencing. Appellant also maintains that his youthful age (18 years) and limited educational background (9th grade) made it difficult for him to understand the total ramifications of his plea and that he was not aware that he was pleading guilty to three charges which were Felony III's.

[ 374 Pa. Super. Page 222]

The standard for granting a withdrawal of a guilty plea following sentencing is that of "manifest justice." That is, a defendant is entitled to withdraw a plea of guilty as a matter of right where the court finds that it was not voluntarily and intelligently made. Commonwealth v. Carter, 318 Pa. Super. 252, 464 A.2d 1327, 1333-4 (1983). However, the burden is on the petitioner to prove involuntariness. Id., 318 Pa. Superior Ct. at 1333-1334, 464 A.2d at 1334.

Instantly, it is clear that Appellant did not meet his burden of proof. The record reflects that a thorough colloquy was conducted in which Appellant was specifically advised of the charges against him including the fact that they constituted "felony three's." (N.T. at 7). Appellant was also apprised of the possible severity of the sentences to which he was exposed and the fact that these sentences could be entered consecutively, or in the court's words: "one on top of the other". (N.T. at 8). When asked if he understood these facts, Appellant answered in the affirmative. (N.T. at 8). Although we are unable to discern from the record what representations counsel made to appellant concerning the presence of the arresting officer at sentencing, a discussion of the relation of these asserted representations and their effect on Appellant's plea would be of no value in view of our disposition of Appellant's sentencing issues. (See discussion infra).

Appellants contention that his age and limited education resulted in an involuntary and unknowing plea is completely contrary to the attitude he demonstrated during sentencing. Appellant represented to the court that he understood the nature of the charges and the plea he was entering. Firmly entrenched within this Commonwealth's body of law is the principle "that a criminal defendant who elects to plead guilty has a duty to answer questions truthfully". Commonwealth v. Mitchell, 319 Pa. Super. 170, 465 A.2d 1284, 1286 (1983). Thus, we are not convinced that the court erred in entering an order denying Appellant the right to withdraw his guilty plea.

[ 374 Pa. Super. Page 223]

We next turn to a discussion of the challenges Appellant raises to the propriety of the sentence he received. Prefacing his argument on these issues, Appellant sets forth in his Brief specific reasons for challenging the discretionary aspect of his sentence. Among the allegations made by Appellant is a claim that the sentences were excessive and constituted an abuse of discretion since they were imposed consecutively without consideration (in determining the prior record score) of the fact that the crimes were part of an ongoing transaction. See 42 Pa.C.S.A. § 9721, 204 Pa.Code § 303.6 Concluding that Appellants concise statements of reasons relied upon for allowance of appeal ...


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