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08/06/97 COMMONWEALTH PENNSYLVANIA v. THOMAS STARK

August 6, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
THOMAS STARK, APPELLANT



Appeal from the PCRA Order of the Court of Common Pleas of Westmoreland County, Criminal Division at 2797 C 1991. Before MCCORMICK, J.

Before: Popovich, Hudock and Hoffman, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

Filed August 6, 1997

This is an appeal from the order of the Court of Common Pleas of Westmoreland County which denied appellant's petition for relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541, et seq. Herein, appellant asks this court to expand the inquiry necessary to insure that an accused enters his guilty plea in a voluntary and understanding manner to include "any special circumstances affecting probation or release from incarceration." Upon review, we find that appellant's guilty plea was knowing and voluntary, despite the court's failure to advise appellant of the circumstances affecting parole and the changes in release rules of the Board of Probation and Parole after appellant was sentenced. Accordingly, we affirm the order of the PCRA court which denied appellant's requested relief.

Presently, appellant pleaded guilty on September 2, 1992, to charges of burglary and theft by unlawful taking. Pursuant to a plea agreement, appellant was sentenced to three year to six years of imprisonment. No further action was taken until November 17, 1995, when appellant filed a pro se writ of habeas corpus. Counsel was appointed, and this PCRA claim was brought. Both appellant's original writ of habeas corpus and his PCRA petition were filed in response to the denial of parole by the Pennsylvania Board of Probation and Parole, after the expiration of his minimum sentence. The PCRA court, in its opinion, noted:

The [appellant] presented testimony which showed that a number of changes [in the parole release rules of the Pennsylvania Board of Probation and Parole] occurred subsequent to the imposition of sentence and contends that these changes directly affect the period of time during which he will remain incarcerated. For example, the Board now more closely scrutinizes inmates who were convicted of crimes of violence before making a determination on their eligibility for release; a conviction for burglary is considered to fall under the category of crimes of violence. Furthermore, the number of signatories required for release of an inmate convicted of a "violent crime" was increased from two (2) to three (3) out of five possible Board members (N.T. 108). At least partly as a result of these changes, the release date on prisoner's minimum dates dropped from 80% in the years from 1992-1993 to 29 % in the first quarter of 1996.

Undoubtedly, the Disposition of the Parole Board has changed since the [appellant] entered his guilty plea; however, the [appellant] failed to show that, but for these changes, he would have been released on his minimum date.

Under the PCRA, a petitioner is eligible for relief if he pleads and proves by a preponderance of the evidence that he has been convicted of a crime for which he is currently serving a sentence and that his conviction has resulted from "a plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty." 42 Pa.C.S.A. §§ 9543(a)(1)(i), (2)(iii). *fn1 The error must not have been waived, or must meet certain specified exceptions. 42 Pa.C.S.A. § 9543(3). A issue is waived where the petitioner failed to raise it and it could have been raised before trial, at trial, on appeal, in a habeas corpus proceeding actually conducted or in a prior PCRA petition. 42 Pa.C.S.A. § 9544(b). Since appellant's denial of parole and the changes in the parole release rules occurred after appellant's right to a direct appeal had expired and this is appellant's first PCRA petition, we find that this issue is not waived.

We also conclude that appellant has raised a cognizable issue. Appellant contends that the PCRA court erred when it rejected his request to withdraw his guilty plea because it was not "knowingly and voluntarily" entered since appellant was not advised of the "special circumstances affecting probation or release from incarceration" and the parole release policy of the Pennsylvania Board of Probation and Parole was substantially changed after appellant's sentencing. 42 Pa.C.S.A. § 9543(a)(2)(iii); cf., Commonwealth v. Persinger, 532 Pa. 317, , 615 A.2d 1305, 1307 (1992) (claim that plea was involuntary due to court's failure to advise defendant of possibility of consecutive sentences was cognizable under PCRA).

Our analysis of appellant's argument reveals a two-part argument. First, appellant contends that he was not advised of the "special circumstances affecting parole" when he pleaded guilty. Second, he claims that he should be permitted to withdraw his plea because changes to the parole release rules after imposition of his sentence effectively increased his minimum sentence and frustrated the terms of his negotiated plea. In both arguments, appellant submits that his plea was unlawfully induced because he was not aware of the consequences of his plea, and manifest inJustice requires this court to permit him to withdraw his plea and remand the case to the Westmoreland Court of Common Pleas so that the court can resentence appellant in a manner which would permit appellant to become eligible for parole at the particular time which he and the court anticipated at the time of sentencing.

In Persinger, supra, our Supreme court set forth the appropriate standard to be applied when reviewing a PCRA petition to withdraw one's guilty plea, as follows:

When considering a petition to withdraw a guilt plea submitted to a trial court after sentencing, . . ., it is well-established that "a showing of prejudice on the order of manifest inJustice is ...


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