214 Pa. Super. 126 | Pa. Super. Ct. | 1969
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. This is a nunc pro tunc direct appeal from a guilty plea entered October 26, 1964, on a charge of cheating by false pretense. On April 5, 1968, appellant filed a petition under the Post Conviction Hearing Act claiming only that he had been denied the right to appeal. On July 22, 1968, the court below granted appellant the right to appeal nunc pro tunc.
The ultimate consequence of Stokes and Walters is that except in homocide cases, the grant of the right to direct appeal nunc pro tunc is never an appropriate form of relief if the petitioner has pled guilty. In every case, the post-conviction court is required to rule upon the claims cognizable upon direct appeal. If these claims are found to be without merit, the petition should be dismissed. Otherwise, the plea should be vacated and a new trial granted. In either event, the post-conviction petitioner is not prejudiced by denial of his right to a direct appeal.
The futility of granting a direct appeal without passing upon the voluntariness of the plea is demonstrated in the instant case. In his appeal brief, appellant contends that his plea was the product of a coerced confession and ineffective assistance of counsel. The facts recited in the brief in support of these contentions are not of record since there has been no hearing on the claim and the plea would not have been accepted had they been revealed at trial. This Court cannot properly pass upon these claims. The facts alleged in support of the claims are not of record and there has been no determination below of the merits of the claims.
Lead Opinion
Opinion
Judgment of sentence affirmed.