Commonwealth v. Houser

Superior Court of Pennsylvania

Commonwealth v. Houser

334 A.2d 691, 232 Pa. Super. 384, 1975 Pa. Super. LEXIS 1388

CourtSuperior Court of Pennsylvania

DecidedFebruary 27, 1975

DocketAppeal, 435

StatusPublished

Cited by5 cases

This text of 334 A.2d 691 (Commonwealth v. Houser) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Houser, 334 A.2d 691, 232 Pa. Super. 384, 1975 Pa. Super. LEXIS 1388 (Pa. Ct. App. 1975).

Pincite

Opinion

Opinion by

Jacobs, J.,

On December 4, 1972, appellant pleaded guilty to possession of a small amount of heroin. He received a sentence of three years probation. No direct appeal was taken. The terms of probation were allegedly violated and on June 10, 1974, a hearing was held. After testimony was received, the lower court revoked appellant’s probation and sentenced him to one year of imprisonment.

In this appeal from the sentence of the lower court after revocation of probation, appellant questions whether his plea of guilty in 1972 was knowing and voluntary. For relief appellant requests us to vacate the judgment and grant him a new trial. After reviewing the record we find that the validity of the 1972 plea was not challenged at the hearing in the court below. The only issues raised there were whether probation had been violated and the permissible range of sentencing upon revocation of probation. The lower court was not requested to nor did it on its own motion consider the issue of the validity of the 1972 guilty plea.

Under these circumstances we decline to review the merits of this issue. It is well established that “we will not review for the first time on appeal issues not properly raised and preserved in the trial court.” Commonwealth v. Reid, 458 Pa. 357, 359, 326 A.2d 267, 268 (1974). However., we do not find that appellant waived the issue by failing to raise it at the violation of probation hearing. That proceeding was merely a narrow inquiry instituted *386 by the Commonwealth to determine whether appellant violated the terms of his probation. See Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973). The validity of the 1972 guilty plea was not an issue to be raised at that proceeding.

If the appellant desires to raise the guilty plea issue he may do so in a petition under the Post Conviction Hearing Act. See Act of Jan. 25, 1966, P.L. (1965) 1580, §3(c) (7), 19 P.S. §1180-3 (c) (7) (Supp. 1974-75).

Sentence affirmed.

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Opinion by

Jacobs, J.,

On December 4, 1972, appellant pleaded guilty to possession of a small amount of heroin. He received a sentence of three years probation. No direct appeal was taken. The terms of probation were allegedly violated and on June 10, 1974, a hearing was held. After testimony was received, the lower court revoked appellant’s probation and sentenced him to one year of imprisonment.

In this appeal from the sentence of the lower court after revocation of probation, appellant questions whether his plea of guilty in 1972 was knowing and voluntary. For relief appellant requests us to vacate the judgment and grant him a new trial. After reviewing the record we find that the validity of the 1972 plea was not challenged at the hearing in the court below. The only issues raised there were whether probation had been violated and the permissible range of sentencing upon revocation of probation. The lower court was not requested to nor did it on its own motion consider the issue of the validity of the 1972 guilty plea.

Under these circumstances we decline to review the merits of this issue. It is well established that “we will not review for the first time on appeal issues not properly raised and preserved in the trial court.” Commonwealth v. Reid, 458 Pa. 357, 359, 326 A.2d 267, 268 (1974). However., we do not find that appellant waived the issue by failing to raise it at the violation of probation hearing. That proceeding was merely a narrow inquiry instituted *386 by the Commonwealth to determine whether appellant violated the terms of his probation. See Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973). The validity of the 1972 guilty plea was not an issue to be raised at that proceeding.

If the appellant desires to raise the guilty plea issue he may do so in a petition under the Post Conviction Hearing Act. See Act of Jan. 25, 1966, P.L. (1965) 1580, §3(c) (7), 19 P.S. §1180-3 (c) (7) (Supp. 1974-75).

Sentence affirmed.

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Bluebook (online)

334 A.2d 691, 232 Pa. Super. 384, 1975 Pa. Super. LEXIS 1388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-houser-pasuperct-1975.

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