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Commonwealth v. Berry6/13/2005
1 Appellant, Jeffrey L. Berry, appeals from the order dated March 20, 2003, denying his first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
2 The procedural history of the case is as follows. Appellant was charged with one count of driving under the influence , and one count of driving while operating privileges are suspended or revoked. On September 12, 2002, the court held a plea colloquy. During this colloquy, Appellant expressed his desire to proceed pro se. The court allowed Appellant to do so. The court then stated that the parties had reached a plea arrangement. Specifically, in exchange for Appellant's guilty pleas, the district attorney would recommend that Appellant's sentences be served concurrently. The court advised Appellant that the court was not bound by the terms of the plea arrangement. The court also told Appellant that if the court did not abide by the arrangement, Appellant would be entitled to withdraw his pleas. Appellant affirmed his understanding of these statements and entered his guilty pleas.
3 On October 21, 2002, the court held a sentencing hearing. Again, Appellant proceeded pro se. The court rejected the Commonwealth's sentencing recommendation and imposed consecutive sentences. Specifically, the court imposed a mandatory prison term of 90 days for driving under suspension, consecutive to a prison term of nine to 23 months for DUI. The court did not inform Appellant that he could withdraw his plea. Appellant stated that he wanted to challenge the sentence. The court told Appellant that he should fill out a form at the county jail to obtain a Public Defender. The record reflects that Appellant did not file any post-sentence motions, and did not file a direct appeal.
4 On January 8, 2003, Appellant filed a timely PCRA petition. The PCRA court appointed counsel for Appellant. Counsel filed an amended petition. In that petition, Appellant argued that his sentence was illegal. Specifically, Appellant argued that the trial court violated the plea agreement by imposing consecutive sentences and by not allowing Appellant to withdraw his plea. Appellant further argued that he should be able to withdraw his guilty plea and proceed to trial. The PCRA court held a hearing on March 19, 2003. The court denied the petition the next day, on March 20, 2003. This appeal followed.
5 Appellant raises two issues on appeal:
1. Did the lower court err in not permitting the defendant to withdraw his guilty plea?
2. Did defendant waive his right to contest the sentence by not filing a direct appeal?
Appellant's Brief at 4.
6 Our standard of review for an order denying PCRA relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Allen, 732 A.2d 582, 586 (Pa. 1999).
7 We will address Appellant's second issue first. Appellant argues that his failure to file a direct appeal did not operate as a waiver of his sentencing claim, because challenges to the legality of a sentence are never waived. To be entitled to PCRA relief, a petitioner must plead and prove, inter alia, that the allegation of error has not been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). An issue is waived if it could have been raised prior to the filing of the PCRA petition, but was not. 42 Pa.C.S.A. § 9544(b).
8 The record reflects that Appellant did not move to withdraw his plea, did not file post-sentence motions, and did not file a direct appeal. Instead, he filed a petition under the PCRA. Here, for the first time, Appellant req
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