Commonwealth v. Donnelly
Commonwealth v. Donnelly
Opinion of the Court
Appeal is taken from an Order of the lower court denying without hearing relief sought pursuant to the Post Conviction Hearing Act, Act of 1966, Jan. 25, P.L. 1580, 19 P.S. § 1180-1 et seq. Pertinent facts are that appellant was charged with two counts of burglary and one of unlawfully carrying a firearm. Crimes Code, Act of 1972, Dec. 6, No. 334, 18 Pa.C.S. §§ 3502 and 6106. After certain pre-trial proceedings were completed, the case came on for hearing, at which time appellant entered a plea of guilty to all charges. His counsel stated to the court that he understood the plea bargain to be structured upon a proposed sentence of two to five years imprisonment to run concurrently to an existing sentence out of the Montgomery County Court. The Commonwealth expressed no disagreement with this statement, and the court conducted a colloquy, following which it accepted the plea as bargained. Sentence was rendered to be two to five years imprisonment on the burglary convictions, and one to two years on the firearms violation, to be served concurrently at Camp Hill.
Appellant now alleges that his guilty plea was entered unknowingly and that his counsel’s representation was ineffective. This argument he bases upon the proposition that at the time of entry of the plea, he understood the bargain to be that the instant sentence would run concurrently with the existing sentence out of Montgomery County, as to which he apparently was released on parole at the time of the instant trial on March 15, 1978. However, appellant tells us in his brief that forty days after imposition of the instant sentence, the Board of Probation and Parole revoked his parole on this prior 6-to-12 sentence out of Montgomery County, and remanded him to prison to serve that time, only after which serving of time would he complete serving the instant sentence out of Dauphin County.
The statute under which the Board revokes the parole of one who, while released on parole, commits a crime for which he is convicted and sentenced “to any place of confinement other than the penitentiary from which he or she
Regardless of this confusion in the record, it is clear that the plea bargain as stated by counsel was impossible of fulfillment because the two sentences of imprisonment could not be served concurrently under the state of the law at the time the second was rendered. Act, supra, § 305. Thus there is a discrepancy between that which is stated to be the content of the plea bargain and the actual sentence rendered by the lower court (Dauphin County), which stated only that the periods of incarceration on the charges would be concurrent one with the others. We are led to the conclusion that it was possible that appellant did not understand the plea bargain and entered into it unknowingly, and was represented ineffectively in this regard. Or it is possible that appel
Remanded for evidentiary hearing, with directions.
If it be found at this hearing that appellant’s guilty plea was made unknowingly and that counsel had not fully explained the bargain, then a new trial is ordered. If it be found at this hearing that appellant’s guilty plea was knowingly and intelligently made, and that the allegations proposed in his P.C.H.A. petition and brief to us are without merit, then the order denying relief is affirmed, with the proviso that the defendant-appellant be resentenced in such a manner that the new sentence run concurrently with that imposed for violation of his parole.
. We note in passing that the second provision of § 305 does not appear applicable on the facts as we have them. This section obtains only when the same penitentiary is assigned for both sentences, in which situation the first sentence is to be served prior to the second.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.