COM. v. DORIAN

SPAETH, Judge:

This is an appeal from judgment of sentence for burglary. Appellant argues that the lower court (1) lacked jurisdiction to accept his guilty plea; (2) erred in refusing to allow him to withdraw his guilty plea; (3) imposed an illegal and excessive sentence; and (4) denied him effective assistance of counsel. We affirm.

Appellant was arrested on March 17, 1980, and charged with criminal attempt, criminal mischief, and burglary. He pleaded guilty to burglary and the Commonwealth moved to have the remaining charges nol prossed because they merged with the burglary. N.T. 5/6/80 at 1. On March 9, 1981, the lower court sentenced appellant to six to twelve years in prison, the sentence to be served concurrently with another sentence that had been earlier imposed and that appellant was serving. Motions to modify or vacate the sentence were denied, and this appeal followed.

Appellant first argues that the lower court lacked jurisdiction to accept his guilty plea because when his plea was accepted, "pre-trial motions" were pending. Although it is true that appellant did complain during the course of his guilty plea hearing that he had not been allowed to be present at his arraignment or at a pre-trial conference, N.T. 5/6/80 at 10, these complaints did not rise to the level of pre-trial motions. Even if they had, they would not have deprived the lower court of jurisdiction. Appellant's reliance on Commonwealth v. Borris, 280 Pa. Super. 369, 421 A.2d 767 (1980), is misplaced. In Borris the lower court accepted a guilty plea during the pendency of an appeal concerning pre-trial motions. Except in certain limited instances, an appeal does oust the lower court's jurisdiction. Pa.R.A.P. 1701(a).

Appellant's argument is in any event foreclosed by his guilty plea. Before accepting his plea, the lower court advised appellant that by pleading, he would waive his right to argue that he should have been allowed to be present at his arraignment and at the pre-trial conference, and appellant responded that he understood that but was going to plead guilty anyway. N.T. 5/6/80 at 10-16. See also Commonwealth v. Arndt, 269 Pa. Super. 578, 410 A.2d 852 (1979) (defendant who pleads guilty waives right to challenge anything but legality of sentence and voluntariness of plea).

Appellant next argues that the lower court abused its discretion in denying his pre-sentence motion to withdraw his guilty plea. It is true, as appellant argues, that requests to withdraw guilty pleas prior to sentencing "are to be liberally allowed for any `fair and just' reason unless the prosecution has suffered substantial prejudice." Commonwealth v. Hayes, 462 Pa. 291, 300, 341 A.2d 85, 90 (1975). See also Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). It is also true that in Commonwealth v. Boofer, 248 Pa. Super. 431, 375 A.2d 173 (1977), cited by appellant, this court held that a critical consideration in the decision whether to allow withdrawal of a guilty plea is the presence or lack of prejudice to the Commonwealth. But appellant fails to note that in Boofer the defendant asserted his innocence and that we found that to be a "fair and just reason" for permitting him to withdraw his guilty plea. Here, by contrast, appellant not only did not assert his innocence, but his guilty plea colloquy is replete with unequivocal admissions of guilt. We have not overlooked the fact that at the hearing on appellant's motion to withdraw his guilty plea, N.T. 2/9/81 at 9-11, appellant testified that upon further reflection, and after discussion of his case with fellow inmates, he thought he had a "possible defense" to the burglary charge. The suggested defense was that his statement to the police might have been inadmissible because he "was on drugs and . . . under extreme pain" when he gave the statement, N.T. 9; that tools found on the roof "were in no way connected with" him, N.T. 10; and that "there is a possibility just based upon the fact that I have been in prison as much as I have that an insanity defense might be entered in this case also," N.T. 11. This testimony does not amount to an assertion of innocence. Since appellant has offered no "fair or just" reason why he should have been permitted to withdraw his guilty plea, we find no error in the lower court's refusal to permit him to withdraw it.

Appellant next argues that his sentence was illegal because the lower court directed that it should be served concurrently with an earlier sentence imposed on appellant. Appellant had been released on parole on this earlier sentence, but because of the burglary we are considering here, parole was revoked, and when appellant was sentenced on the burglary, he had resumed serving his earlier sentence in prison. See N.T. 3/9/81 at 30, 32-33, 36, 42. According to appellant, 61 P.S. 331.21(a) forbids the lower court from directing that his sentence for burglary be served concurrently with his earlier sentence. This argument lacks merit. Section 9761 of the Sentencing Code specifically recognizes the sentencing judge's authority to impose a sentence "which is to run concurrently with a [sentence] which has been previously imposed." To the extent that 61 P.S. 331.21a(a) is inconsistent with Section 9761, it has therefore been repealed.

Cases construing 61 P.S. 331.21a(a) have held that "a parole violator convicted and sentenced to prison for another offense must serve his or her back time and the new sentence in consecutive order." Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976). See also Commonwealth v. Draper, 222 Pa. Super. 26, 29, 293 A.2d 614, 615 (1972) ("When a parolee is convicted and sentenced to imprisonment for a crime committed while on parole, the new sentence and the remainder of the old sentence must be served consecutively, and the sentencing judge has no authority to order that the sentence be concurrent."); Commonwealth ex rel. Sanders v. Maroney, 202 Pa. Super. 202, 204, 195 A.2d 882, 883 (1963) ("The intention of sentencing judge is immaterial."). But these cases were either decided before the Sentencing Code, see Draper and Sanders, or, while filed after the Code's effective date, applied the law as it was in effect at the time the sentence was imposed, see Zuber. Thus in Zuber the Supreme Court noted that "[t]he Commonwealth concedes in its brief to this court `that under the law of Pennsylvania in effect at the time appellant was sentenced, neither a court nor the Parole Board had the power to order that a `back time' and a `front time' sentence be served concurrently.'" 466 Pa. at 457, 353 A.2d at 443 (emphasis added). By this statement the Court recognized that Section 9761 of the Sentencing Code had changed the law by enabling the sentencing judge to direct that his sentence — the "front time" sentence — "is to run concurrently with one which has been previously imposed" — the "back time" sentence.

Appellant also argues that his sentence is excessive, but this argument also lacks merit. When before the lower court he argued that the sentence was excessive because, he claimed, the Board of Parole would not release him at the end of the six year minimum term (which would be reached at about the time of the expiration of his earlier imposed sentence). It is always possible that the Board will not release a prisoner at the end of his minimum term, but that possibility does not render the sentence excessive; if it did, every sentence would be excessive. Appellant advances other reasons why his sentence is excessive but we see no reason to discuss them. The lower court ordered a presentence investigation. At the sentencing proceeding the report of the investigation was reviewed, and appellant and his counsel were permitted to make full argument. Appellant makes no claim that the lower court has not complied with Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and we find no manifest abuse of discretion in the court's selection of sentence. In fact the sentence is comparatively lenient, given that it is to be served concurrently with appellant's earlier sentence.

Finally, appellant argues that county officials and the lower court denied him effective assistance of counsel in preparing, filing, and arguing a pre-sentence motion to withdraw his guilty plea. We are unable to find any support for his argument, either in the record or in appellant's brief.

Affirmed.

JOHNSON, J., files a concurring and dissenting opinion.