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HomeMy WebLinkAbout96-1693 criminalCOMMONWEALTH VS. GARY ERNEST BELL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 96-1481 CRIMINAL CHARGE: (1) RECEIV~G STOLEN PROPERTY (2) FLEEING OR ATTEMPTING TO ELUDE POLICE AFFIANT: TPR. JAMES WILSON 96-1693 CRIMINAL CHARGE: THEFT BY UNLAWFUL TAKING AFFIANT: TPR. DANIEL HOUSEL IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE 1925 BEFORE GUIDO, J. Defendant pled guilty to the above charges on January 7, 1997. On January 17, 1997, he was sentenced by Judge Hoffer at 96-1481 to undergo a period of incarceration in a State Correctional Institution for not less than fifteen (15) months nor more than seven (7) years at Count I and to undergo a period of incarceration for not less than one (1) nor more than two (2) years at Count II. Said sentences were to mn concurrent and the defendant was given credit from August 25, 1996. He was sentenced to pay the costs of prosecution and to make restitution at 96- 1693. No direct appeal was filed. On August 25, 1998, defendant filed a petition under the Post Conviction Relief Act (42 Pa.C.S.A. Section 9541, et seq.) alleging that his trial counsel was ineffective. New counsel was appointed to represent him. A hearing on the petition was held on November 4, 1998. The crux of defendant's complaint is that he did not receive the sentence he was promised in return for his guilty plea. He argues that counsel was ineffective for failing to insist that the Commonwealth abide by the terms of the agreement. He also alleges that counsel was ineffective for failing to file appropriate postsentence motions and a direct appeal when it was 96-1481 CRIMINAL 96-1693 CRIMINAL apparent that he did not receive the benefit of his bargain.~ At the conclusion of the hearing we entered an order denying the petition. DISCUSSION At the hearing the defendant conceded that he was guilty of all the charges. 2 However, he testified that his guilty plea was based upon a specific understanding that he would receive a sentence of fifteen to thirty months.3 He further testified that Judge Hoffer specifically told him of the possible sentence, but his lawyer assured him that he would receive the agreed upon fifteen to thirty month sentence.4 The defendant did not indicate dissatisfaction with his sentence until more than seven months after the sentence was imposed.~ The reason for the delay, according to defendant, was that he did not realize that he had received a sentence of fifteen months to seven 6 years. Defendant's trial counsel was Samuel Milkes, Esquire. He is an experienced and very ~See defendant's Concise Statement of Matters Complained of on Appeal. Defendant also contends that the sentence imposed was unlawful. However, this matter was not raised before us and we are unclear as to the basis of this contention. He entered a plea to a charge of Receiving Stolen Property graded a felony of the third degree. The sentence was within the statutory range of up to seven years incarceration. [18 Pa.C.S.A. § 1103(3)] 2N.T. page 4. 3N.T. page 6. 4N. T. pages 8-9. 5N. T. page 24. 6N. T. page 10.. 96-1481 CRIMINAL 96-1693 CRIMINAL capable Assistant Public Defender. He testified that there was never any agreement as to a specific sentence that the defendant would receive.7 The only agreement was that the sentences on the various charges he was facing would mn concurrent to each other and that any minimum sentence would be in the low end of the standard range.~ Mr. Milkes never said anything to lead the defendant to believe that he would receive a sentence of fifteen to thirty months.9 If the defendant did not receive the benefit of his plea agreement, and if counsel failed to object, or otherwise preserve his rights on appeal, he would be entitled to relief under the Post Conviction Relief Act. See Com. v. Williams., 442 Pa. Super. 590, 660 A.2d 614 (1995). However, in the instant case, we chose to believe the testimony of trial counsel rather than that of the defendant. Therefore, we concluded that the defendant received exactly what he bargained for, i.e., a minimum sentence in the low end of the standard range,l° and sentences on both charges to run concurrent. As a result of that conclusion, we denied the defendant's request for relief. January~ ] , 1999 Edward E. Guido, J. 7N. T. page 22. 8N. T. page 22. 9N. T. page 28. 10 ~ Commonwealth s Exhibit 3 is the presentence investigation report which shows the standard range for the minimum sentence to be "15 - 21 months, Level 4." 96-1481 CRIMINAL 96-1693 CRIMINAL Jaime M. Keating, Esquire Chief Deputy District Attorney James K. Jones, Esquire Court-appointed for the Defendant :rim