Commonwealth v. Hoskins

478 A.2d 45, 329 Pa. Super. 226, 1984 Pa. Super. LEXIS 5378

• Court: Supreme Court of Pennsylvania
• Decided: July 6, 1984
• Docket: 761
• Status: Published

Opinions

JOHNSON, Judge:

Following a counseled guilty plea to charges of aggravated assault¹ and carrying a firearm without a license,² appellant was sentenced to two and one-half to five years imprisonment on June 2, 1981. No direct appeal was taken, but on June 5, 1981 appellant filed a pleading with the trial court styled “Motion to Withdraw Plea of Guilty.” The motion was denied on July 7, 1981, following a brief hearing.

On this appeal, filed July 22, 1981, appellant seeks review of five issues, all related to the attempted plea withdrawal and sentencing.³ Because the appeal was not timely filed, the appeal will be quashed.⁴

The proper disposition of this appeal requires an examination of the pleading filed by appellant three days after sentencing and styled “Motion to Withdraw Plea of Guilty.” The motion, in its entirety, sets forth the following:

MOTION TO WITHDRAW PLEA OF GUILTY

AND NOW, comes the Defendant, DURELL HOS-KINS, by and through his Attorneys, Evans, Johnson, Scarpitti, McCullough and Wittman, and hereby moves this Court to permit him to withdraw his previously entered plea of guilty in the above captioned matter, and in support thereof states:

1. The Defendant had previously entered a plea of guilty for the charges of aggravated assault and unlawful possession of a firearm at Information Number 1673 of 1980.

2. That plea was entered before the Honorable Judge Edward H. Carney in the Erie County Court of Common Pleas on January 13, 1981.

3. The Defendant was sentenced by Judge Carney on June 2, 1981.

4. The Defendant believes that the sentence imposed by this Honorable Court was excessive and unwarranted by any of the facts or circumstances of the case pending before the Court.

WHEREFORE, the Defendant respectfully requests this Court for permission to withdraw his previously entered plea and to list the case for trial during the next term of the Criminal Court of the Erie County Court of Common Pleas.

The first three numbered paragraphs of the motion contain nothing more than averments of fact relating to the history of appellant’s case. The fourth and remaining numbered paragraph does not raise any issue concerning the voluntariness of the guilty plea, but merely avers that the sentence imposed was “excessive and unwarranted.”

When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing, a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified. Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973); see also, Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Siers, 318 Pa.Super. 215, 464 A.2d 1307 (1983). In the petition before us, appellant alleges no facts, nor does he even set forth conclusions of law, which would in any way warrant a challenge to the validity of the guilty plea pursuant to Pa.R.Crim.P. 321.

Our reading of the “Motion to Withdraw Plea of Guilty” leads us to the conclusion advanced by the Commonwealth on this appeal. The pleading is in reality a claim addressed to the sentencing court centering solely on the excessiveness of the sentence. It follows that the motion brings before the sentencing court nothing more than a motion to modify sentence, and must be viewed as having been filed pursuant to Pa.R.Crim.P. 1410.

We know that the headings prefixed to various parts of a statute shall not be considered to control but may be used to aid in the construction thereof. 1 Pa.C.S. § 1924. We also recognize that the title or headings prefixed to chapters of our civil procedural rules shall not be considered to control but may be used in the construction of such rules. Pa.R.C.P. 129. Although we have found no counterpart to Pa.R.C.P. 129 in the Rules of Criminal Procedure, we can think of no reason why a pleading which, by its averments, seeks to secure reconsideration of a sentence based on the claim of excessiveness of sentence should not be treated as a motion for reconsideration as provided by Pa.R.Crim.P. 1410. We are constrained to so treat the motion on this appeal.⁵

An appeal to this court from a judgment of sentence must be filed within thirty days of its entry, Pa.R.A.P. 903(a), and such time limitations are to be strictly construed. Commonwealth v. Wilkinson, 260 Pa.Super. 77, 393 A.2d 1020 (1978). In Wilkinson, we held that the appeal was not properly before us because a petition for reconsideration does not extend the time for appeal from a judgment of sentence. 260 Pa.Super. at 79, 393 A.2d at 1021. Accord, Commonwealth v. Thompson, 277 Pa.Super. 267, 419 A.2d 765 (1980). See also Comment to Pa.R. Crim.P. 1410.⁶

As in Wilkinson, the record in the appeal now before us reflects that appellant was advised during the sentencing hearing of the time for filing an appeal. Since the appeal was not timely filed, we are without jurisdiction to entertain it.

Appeal quashed.

SPAETH, President Judge, files a dissenting opinion.

1 . 18 Pa.C.S. § 2702(a)(1).

2 . Id. § 6106(a).

3 . The first three issues all challenge the refusal of the trial court to permit guilty plea withdrawal on the grounds that (a) counsel failed to insure that the defendant understood the nature of the charges and failed to insure that the elements of the offenses were explained on the record in terms understandable to the defendant; (b) defendant’s belief that a probationary sentence plea bargain had been arranged rendered his plea involuntary; and (c) counsel did not investigate the case, prepare a defense, or file a suppression motion. The fourth issue combines a claim of sentence excessiveness with failure to articulate the reasons for the sentence on the record. The fifth issue asserts ineffective assistance of counsel in failing to file a motion for reconsideration, given the allegations contained in the fourth issue.

4 . This appeal was first argued before a three-judge panel of this court on June 8, 1983. Believing that the case raised a question concerning the proper interpretation of Pa.R.A.P. 343, it was scheduled for reargument before the court sitting en banc on March 12, 1984. The parties, on reargument, also addressed the issue of whether the appeal had been timely filed.

5 . In the very brief hearing on the so-called Motion to Withdraw Guilty Plea, appellant, the only witness, (a) testified to the circumstances surrounding the shooting of the victim, (b) acknowledged his understanding at time of plea tender of the maximum penalty for the offenses charged, and (c) testified to his own, unspecified illness while incarcerated. In denying the motion, the trial court said, inter alia:

I believe that the Court was extremely lenient in imposing the sentence. The sentence could have been double that for the assault charge and I think we suspended the sentence on another charge and I see no reasonable basis for the withdrawal of the plea. I am going to refuse the motion. (N.T., July 7, 1981, page 6).

Although we do not reach the merits of the trial court’s disposition of the motion, we find the trial judge’s remarks entirely consistent within a Rule 1410 context.

6 . "Under this rule, the mere filing of a motion for modification of sentence and the court’s scheduling of a hearing on the motion do not affect the running of the thirty day period for filing a timely notice of appeal, and the need for the defendant to file his appeal (both as to the merits of the case or as to the sentence) within that period.”