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HomeMy WebLinkAbout98-2225 criminalCOMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA vs. · 98-2225 CRIMINAL · SHAWN ALAN LOWE · IN RE: MOTION FOR POST-CONVICTION RELIEF ORDER AND NOW, this z-~' day of May, 2000, the motion of the defendant for post- conviction relief is GRANTED, in part, and the defendant is granted leave to file an appeal nunc pro tunc. B Y THE COURT K~~3~'x/~. Hess, J. Jaime Keating, Esquire Chief Deputy District Attorney Jason Kutulakis, Esquire For the Defendant 'rlm COMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA vs. · 98-2225 CRIMINAL · SHAWN ALAN LOWE · IN RE' MOTION FOR POST-CONVICTION RELIEF OPINION AND ORDER On November 16, 1998, the defendant, Shawn Alan Lowe, was arrested and charged as a result of his alleged involvement in a robbery at the Kentucky Fried Chicken in Enola, Pennsylvania on November 7, 1998. On March 9, 1999, the defendant pled guilty to one count of robbery. The plea agreement, reached at that time, was that the defendant would receive a non-mandatory sentence of not less than five nor more than ten years in a state correctional institution. On or about April 29, 1999, the defendant filed a motion to withdraw his guilty plea. That motion was denied and the defendant was sentenced. On August 10, 1999, the defendant filed a motion to modify his sentence. That motion also was denied. No appeal was filed from any of these proceedings. The defendant first contends that his trial counsel was ineffective for failing to file a suppression motion. This motion would have involved a BB gun found pursuant to a search of the defendant's apartment. At the preliminary hearing, the victim in this case could not identify the BB gun as the one used in the robbery. Trial counsel was correct that the issue, therefore, was not so much one of suppression as of relevance. Counsel intended to file a motion in limine to bar a display of the BB gun to the jury with the no doubt well-taken point that it was irrelevant. Because of the defendant's plea in this case there was, of course, no trial. Thus, the 98-2225 CRIMINAL relevance of the BB gun became moot. Second, the defendant contends that his guilty plea counsel was ineffective for advising him that he would receive a three- to six-year sentence. He makes this contention despite the fact that at the time of the plea it was made abundantly clear to the defendant that the sentence was a sentence of five to ten years. At the PCRA hearing, this matter was reviewed with guilty plea counsel in some detail. In part, counsel stated: Q Did you tell him that if he were to get out before the five years that that would be up to the Judge or the Parole Board? A I probably told him- I don't think I used the term Parole Board. I probably was telling him you are in the prison, if you cooperate and complete the programs, and if you have a substance abuse program, things of that nature, there would be programs to get early release. I don't think I used the term Parole Board. Q Okay. But did you discuss at least the five to ten sentence that the set sentence was for? A Yes. N.T. 5-6. Our review of this record does not support the contention that the defendant's guilty plea was unlawfully induced based on a guarantee of a sentence of three to six years. Finally, defendant contends that he was denied his right to file a direct appeal as of right. · In this case, we denied the defendant's motion to withdraw his guilty plea. In addition, following sentence, we denied his motion for modification. Mr. Lowe indicated in his testimony that he had asked his attorney to appeal the matter of the withdrawal of his guilty plea in addition to 98-2225 CRIMINAL pursuing the matter of the modification of sentence. Counsel indicated that he did not recall that Mr. Lowe requested that an appeal be taken. The record makes it clear in this case that the motion to modify sentence was denied on an order. Trial counsel agreed that he had no contact with Mr. Lowe after that denial and, specifically, that he did not review his client's appellate 'rights. It is clear that Mr. Lowe desired to appeal our denial of his motion to withdraw his guilty plea and the related matter of his sentence. Counsel, however, did not maintain contact and we are satisfied that it was for that reason that an appeal was not filed in this case. Our Supreme Court has made it clear that the failure to perfect a requested appeal entitles a defendant to post- conviction relief. In fact, the court has held that the failure to file or affect such an appeal results in a denial so fundamental as to constitute prejudice per se. Com. v. Lantzy, 736 A.2d 564 (Pa. 1999). Accordingly, we will enter the following order. ORDER AND NOW, this ~- ~ day of May, 2000, the motion of the defendant for post- .conviction relief is GRANTED, in part, and the defendant is granted leave to file an appeal nunc pro tunc. BY THE COURT . Jaime Keating, Esquire Chief Deputy District Attorney Jason Kutulakis, Esquire For the Defendant 3