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COMMONWEALTH PENNSYLVANIA v. JOHN C. SCHMUCK (01/30/89)

submitted: January 30, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN C. SCHMUCK, APPELLANT



Appeal from the PCHA Order Entered September 20, 1988, in the Court of Common Pleas of Tioga County, Criminal Division, No. 301 Criminal Action, 1985.

COUNSEL

Robert E. Dalton, Jr., Public Defender, Blossburg, for appellant.

James E. Carlson, District Attorney, Wellsboro, for Com., appellee.

Del Sole, Kelly and Hester, JJ. Kelly, J., files a concurring opinion.

Author: Hester

[ 385 Pa. Super. Page 618]

This appeal is from an order entered September 20, 1988, which denied the June 20, 1988 PCHA petition filed by appellant, John C. Schmuck. We affirm.

On August 14, 1985, appellant supplied a fifteen-year-old boy with beer, took him to a hotel, and performed fellatio on him. Appellant was arrested on August 22, 1985, and charged with involuntary deviate sexual intercourse, corruption

[ 385 Pa. Super. Page 619]

    of minors, indecent assault, and furnishing malt or brewed beverages to a minor. Prior to the preliminary hearing, he conferred with his attorney. In adjudicating appellant's direct appeal, we found that during that conference, his attorney explained the nature of the charges and sentencing possibilities, including the mandatory minimum sentence of five years for involuntary deviate sexual intercourse under 42 Pa.C.S. § 9718(a). Commonwealth v. Schmuck, 369 Pa. Super. 652, 531 A.2d 528 (1987).

Appellant decided to plead not guilty, demanding a jury trial. He was found guilty of all charges. Following the trial, he retained new counsel and filed post-trial motions alleging trial counsel's ineffectiveness. Following denial of those motions on September 2, 1986, appellant received the mandatory five-to-ten-year sentence for involuntary deviate sexual intercourse and a concurrent one-year sentence for corrupting the morals of a minor. We affirmed on direct appeal. Commonwealth v. Schmuck, id.

In that appeal, appellant alleged that trial counsel rendered ineffective assistance, among other things, by failing to advise him of the five-year mandatory minimum sentence for involuntary deviate sexual intercourse. We determined that the claim had no merit, ruling that the attorney had informed appellant of the mandatory sentence under 42 Pa.C.S. § 9718.

In this appeal, appellant's sole contention is that all prior counsel were ineffective for failing to raise the applicability of Commonwealth v. Leonhart, 358 Pa. Super. 494, 517 A.2d 1342 (1986), petition for allowance of appeal denied, 515 Pa. 620, 531 A.2d 428 (1987), to this action.

Appellant contends that he was denied effective assistance of counsel when they failed to raise, in post-verdict motions and on appeal, the Commonwealth's lack of notice of its intent to proceed under 42 Pa.C.S.A. § 9718 (mandatory five-year sentence) in the event that Schmuck was convicted. Appellant asserts that failure of the Commonwealth to provide him, prior to ...


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