*1 hearing P.C.H.A. appellant’s be held before a different judge.
Affirmed in part, reversed in and case part, remanded for proceedings not inconsistent with opinion.
CERCONE, J., dissents.
HESTER, J., files statement. dissenting HOFFMAN, J., did not participate consideration or decision of this case.
HESTER, Judge, dissenting: I dissent.
I would affirm the judgment and below. Pennsylvania
COMMONWEALTH of Leroy BUHL, Appellant. G.
Superior Pennsylvania. Court of
Submitted March Decided Dec. *2 Defender, Pottsville, for we, Public Bo Assistant Jeffrey P. appellant. Pottsville, Russell, for Com- Attorney,
Richard B. District monwealth, appellee. HOFFMAN, CER- JACOBS, and Judge,
Before President HESTER, CONE, PRICE, VOORT, VAN and der SPAETH JJ.
CERCONE, Judge: from denial of appellant’s arises appeal The instant Act, 19 Hearing P.S. under Post Conviction a thereon. hearing following 1180-1 et seq. (Supp.1978), § who appellant, pleaded is that appeal gist did charges January various other escape which was in the plea agreement and concur not understand the basis for his plea, and that transcript colloquy conducted at that time does not rebut that conten- tion. Appellant further contends that this issue has not been finally litigated waived his failure to take direct appeal following the imposition sentence, because he was not informed of his obligation to perfect an appeal within thirty days sentencing of his right assistance of counsel in prosecuting that appeal. Post Con- Act, viction Hearing P.S. 1180-4 (Supp.1978). We § agree with appellant’s contentions, will reverse the order of the court below denying petition, vacate the judgment of sentence, and remand for a new trial. The relevant facts are as follows: 22,1974
On May appellant was convicted of inciting to riot for which he received a subsequently sentence of one to three years prison. In November of 1974 appellant again *3 appeared in court on of charges assault and resisting arrest. When a verdict of was returned on 8,1974, November appellant bolted the allegedly of the custody sheriff. As a while consequence, appellant remained a fugitive, additional charges the including aforementioned of charge escape were filed against him. later, one Approximately year having discussed his counsel, situation with appellant surrendered to the of custody the Schuylkill authorities. County Thereaft- er, appellant’s counsel and the district attorney’s office engaged negotiations which led to the guilty plea herein contested.
The principal bone of contention in this case is appellant’s alleged misapprehension of the plea agreement in that he thought he was to receive sentences on escape and the other charges concurrent with those sentences he had previously received. The district office attorney’s argues that claim is without inerit because the terms of the plea agree- ment were announced in court in open and appellant’s presence at the conclusion of the waiver guilty plea colloquy, and specifically provided that a one-to-two year for escape to be consecutive to sentences im- previously it, Furthermore, sentence, imposed as the posed.1 on Appellant, the agreement. the reiterated this facet of he not then understand that did hand, other maintained and, furthermore, meant and concurrent what consecutive his impaired which hearing he a substantial defect has In any the proceedings. to understand ability fully hear receiv- contends, of the court event, duty it the appellant the to an of defendant plea inquiry the to conduct ing agree- plea and concurs the that he understands ascertain instant case. ment, did not so the and that the court do agree. We are to constrained right his waived
First,
appellant
we cannot hold
to
a
by failing
his
file
the
challenge
to
it on direct
challenging
the
plea
to withdraw
that his
informed
Although
appellant
court
appeal.
cognizable
appeal
limited the issues
sentence,
of the
the legality
voluntariness of
plea,
no
court, there was mention
jurisdiction
apprise
did
court
time limit
an
nor
taking
appeal
for
and of the
appeal
to counsel on
right
to take a direct
immedi
consequences
appeal
failure
we cannot presume
Under these circumstances
ately.
generally
appellant’s right
appeal.
valid waiver of
See
Wilson,
430 Pa.
was admit
Furthermore,
counsel
appellant’s private
because
appeal
when
an
period
filing
tedly
Europe during
running,
appel
so that
from the
of sentence was
judgments
efforts,
wife’s,
well
discuss an
with
appeal
lant’s
as
as his
pur
all
intents and
counsel were
for
unavailing,
practical
was uncoun
appeal
failure to take an
poses appellant’s
*4
our
of a
barring
presumption
selled—another circumstance
Commonwealth v.
rights.
valid waiver of
See
appellate
Lark,
185,
(1977);
Turning the merits of appellant’s claim, the Penn sylvania Procedure, Rules of Criminal Rule 319(b)(2) pro vides:
“When counsel for both sides have arrived at a plea agreement court, shall state on the they record in open the presence defendant, the terms of agree- the ment. Thereupon the shall judge conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.” [Emphasis added.]
In
case,
the instant
when the district attorney placed his
interpretation of
plea agreement
record,
on the
judge did not
inquire
appellant concerning his under-
of its
If
standing
meaning.
had,
he
the instant dispute may
avoided,
have been
because the objective of the guilty plea
is to assure
colloquy
plea made with an under-
standing of the charges and an awareness of the conse-
quences. See, e. g., Commonwealth
Johnson,
169,
460 Pa.
178, 331 A.2d
(1975).
473
McNeill,
Commonwealth v.
453 Pa.
102, 106, 305
(1973).
A.2d 51
Appellant’s full and proper
understanding of the consequences of the plea was necessary
to its validity.
Zuber,
Commonwealth v.
453,
466 Pa.
460,
183 is court below reasons, the order foregoing For vacated, and the case of reversed, the judgment trial. for a new is remanded dissent.
HESTER, J., notes his statement. PRICE, J., concurring files a statement. VOORT, J., dissenting files a VAN der the consideration HOFFMAN, J., participate did not case. of this decision
PRICE, concurring: Judge, so, I do majority. by reached in the result
I concur It is economy. of judicial interests however, only P. 4 of the to see below’s direction clear, in spite was not advised that this Transcript, Sentencing his right advised of was he nor rights, his appeal me, in least to at helpful, is at all Neither brief counsel. the law. articulating the issues or pinpointing Voort, in favor be Van der would, Judge I like Normally Plea Guilty Withdraw for a Petition to remanding done, been however, already that has effect, In hearing. fact remains that hearing. albeit, of the PCHA by way flawed. fatally sentencing at the court below’s colloquy remand as suggested from gained I can see to be nothing the dissent. of sentence judgment vacating therefore join I newa trial. ordering See, g., guilty. v. Chan- pleading e.
quences Permitting dler, the Com- Pa.Super. inadequate circum- supplement record these an monwealth substantially undercut by proof would of extrinsic facts stances supposed colloquy the record is prophylactic purposes which to Rule 319 states: As the Comment to achieve. in the record plea agreement be stated should terms of the “[T]he understands the defendant be made clear that and it should agreement.” and the effect of the nature VOORT, VAN Judge, der dissenting: I dissent. Our Courts have respectfully Pennsylvania *6 that, held when wants to consistently challenge a defendant validity of his he must file a plea, petition trial court to withdraw his as plea. Assuming, does the majority court, of our not defendant has waived his right challenge not taking appeal (an assumption direct I would not make), court not our should make the determination that defend- ant’s The correct procedure invalid. my our judgment is for court to remand the case court below to allow the defendant-appellant court to withdraw his plea. A.2d Craig Mathues,
Pemberton and Gail K. MATHUES wife SCHOOL, INC., Appellant. PROVIDENCE FRIENDS Superior Pennsylvania. Court of
Argued March Decided Dec.