429 Pa. 490 | Pa. | 1968
Opinion by
This is an appeal from the Order of the Court below refusing appellant’s petition under the Post Con
On May 31, 1966, Joseph Hamzik, the petitioner (appellant herein) entered a plea of guilty to the charge of murder. . A hearing, at which petitioner was represented by privately retained counsel, was held May 31 through June 2, 1966, to determine the degree of murder. On August 9, 1966, after considering all the evidence, the Court found defendant-petitioner guilty of murder in the second degree and sentenced him to not less than nine nor more than twenty years. No appropriate motion was filed, and of course no appeal was taken.
On September 29, 1966, pétitioner while represented by counsel filed post-trial motions requesting a new trial and an arrest of judgment, and the vacating of the judgment of sentence nunc pro tunc.
Approximately two months later, on November 22, 1966, petitioner while still represented by private counsel, appeared in Court on the hearing of these motions and stated that he wished to withdraw them because he felt that should he be successful and should the Court find him guilty of second degree murder on a' new trial it could then impose a sentence of not less than ten years, which would increase his term of minimum sentence one year.
Appellant presently contends that he withdrew his prior petition because he was unnerved and feared receiving a harsher sentence on retrial. This is not a sufficient ground or reason for granting his present petition.
“Judge Biester : Are there any questions you want .to ask,.Mr. Valimont? Mr. Valimont: I would like to. ask Mr. Hamzik,. Joe, the sole thing that is bothering you with regard to this is the matter that the Court, in resentencing, would have before it, the possibility of moving the sentence up from nine to ten on the minimum, is that correct? The Defendant: Yes, sir. Mr. Valimont : - That’s the sole reason for—that’s the determining reason for you wishing to withdraw these motions, is that correct? The Defendant: Yes, sir. Mr. Valimont: You do not want to take that risk? The Defendant: No, sir. Judge Biester: And no one has said to you, either Mr. Valimont or this Court or the District Attorney or anyone else, what the sentence would be in the event another sentence is imposed? The - Defendant : No, sir. Mr. Valimont: Also, I have advised you, Joe, have I not, that in my opinion, we .would be successful in our argument here today? The Defendant: Yes, sir: Mr. Valimont: That’s all I have, Your Honor. Judge Biester: Is there anything else you wanted to say, Mr. Hamzik? The Defendant : No, sir. Judge Biester: This is your opportunity, if .there is something. The Defendant: I just want to -get my .time over with and get home to my boy, that’s ,alL”.
. We find no merit in defendant’s contentions.
Order affirmed.