Commonwealth v. CimaszewskiCommonwealth v. Cimaszewski
- Reporters:
- , ,
- Before:
- Van Voort
Lead Opinion
Opinion by
Van der Voort, J.,Aрpeal is taken from an Order denying, without a hearing, appellant’s petition for post-conviction relief.1 At trial on August 28, 1972, appellant pled guilty to charges of burglary, aggravated robbery, and aggravated assault and battery. Sentencing followed on November 21, 1972. On August 16, 1973, appellant filed his petition for post-conviсtion relief, which petition he augmented by an amended petition.
The applicable statute, supra, provides:
“If a petition alleges facts that if proven would entitle the petitioner to relief, thе court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner’s claim is рatently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner.” (§1180-9).
Thus, “[t]he right to an evidentiary hearing оn PCHA review is not absolute.” Commonwealth v. Hayden, 224 *301Pa. Superior Ct. 354, 356, 307 A.2d 389, 390 (1973). It is our duty to carefully study the record, appellant’s petition for relief, and the Commonwealth’s answer.
Appellant’s first argument is that his trial counsel was ineffective.2 He now alleges that the attorney’s advice to plead guilty was against appellant’s better judgment. Further, appellant arguеs that his trial counsel promised him a lesser sentence if he pled guilty, together with credit for time served and an allowance to attend a treatment cеnter. The record shows that appellant, in response to his attorney’s questions, understood the charges against him, the maximum sentences therefor, his absolute right to jury trial, and the presumption of innocence applicable to him. But the record is silent as to appellant’s present claims, which, if true, would entitlе appellant to a hearing. See Commonwealth v. Young, 218 Pa. Superior Ct. 272, 275 A.2d 866 (1971); and Commonwealth v. Rush, 212 Pa. Superior Ct. 437, 243 A.2d 159 (1968).
Although statements were made at trial which are contrary to appellant’s present argument regarding ineffeсtive counsel, we find that the record does not necessarily refute and make invalid and frivolous appellant’s claim as to ineffectiveness of cоunsel, and recognizing that this issue is eligible for presentation at the post-conviction stage (see §1180-3 of the Act, supra), we remand for hearing the issue of ineffective counsel.3
Appellant’s second argument is a rather gеneral one alluding to his guilty plea as having been unlawfully *302induced, which he alleges lends itself better to post-conviction treatment. But for an unexplained reаson, the direct appeal was discontinued.
We are confident that some claims relative to unlawfully induced guilty plea are properly raisablе at direct appeal. Commonwealth v. Rosenberger, 218 Pa. Superior Ct. 95, 279 A.2d 308 (1971). However, on the state of the present record, we are unable to determine whether or not appellant knowingly and intelligently waived his rights to pursue such claims on direct appeal when he inexplicably withdrew his direct appeal. The PCHA hearing court must resolve the question of knowing and intelligent waiver of direct appeal rights. If there was a knowing and intelligent waiver of these rights, any claim of unlawfully induced guilty plea, cognizable оn direct appeal, was waived. See Commonwealth v. Johnson, 433 Pa. 582, 252 A.2d 641 (1969). Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). If no such waiver of direct appeal rights is found, then all of appellant’s claims as to unlawfully induced guilty pleа must be considered by the PCHA hearing court.
Bemanded with a procedendo in accordance with this opinion.
Notes
. Petition was presented pursuant to the Post Conviction Hearing Act, Act of 1966, January 25, P.L. (1965) 1580, §1 et seq.,
. Following trial, Attorney A. A. Guarino was dismissed, and Attorney William F. Coyle replaced him as appellant’s counsel.
. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), holds that ineffectiveness of counsel may be‘raised in a PCHA proceeding in three (3) instances, one of which is “where the petitioner is represented on appeal by new counsel, but the grounds upon which the claim of ineffective assistanсe are based do not appear in the trial record”, 460 Pa. at 100, 331 A.2d at 438. This is the situation in the instant case.
Concurrence Opinion
Concurring Opinion by
Cercone, J.:While I agree with the majority’s conclusion that appellant is entitled to a PCHA hearing as to thе issue of ineffective assistance of counsel, I feel further discussion of this issue is necessary in light of Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). Dancer is similar to the instant case in three critical respects: (1) аppellant, by way of the PCHA, claims ineffective assistance of trial counsel, (2) this issue was not pursued on direct appeal, and (3) appellant was rеpresented on direct appeal by counsel other than trial counsel. Therefore, the question which was considered in Dancer and which must be considered here is whether *303an appellant reрresented on direct appeal by an attorney other than his trial counsel waives his claim of ineffective assistance of counsel by failing to raisе such issue on direct appeal. Dancer held that such failure did in fact constitute a waiver as to any possible subsequent PCHA relief. The next question then becomes whеther the holding in Dancer should control the instant case. This is not an easy question because, although Dancer came after the instant case, the basis for Dancer existed long before this case arose. Section 3 of the Post Cоnviction Hearing Act,
However, it should be pointed out that the exception made above to the general principles of waiver set forth in Sections 3 and 4 of the PCHA is limited only to the issue of ineffective assistance of trial counsel which arose prior to Dancer. Therefore appellant’s contention, on this PCHA appeal, that his guilty plеa was invalid due to an insufficient colloquy cannot now be considered. As to this substantive issue, waiver is applicable due to appellant’s failure to pursue it on direct appeal. Unlike the issue of ineffective assistance of counsel, no ambiguity in the status of the law existed which would permit an appеllant to forego raising any issue, such as the validity of his guilty plea, other than by direct appeal. To not do so constitutes a waiver of such issue.
. The court in Dancer properly concludes that this would he an unrealistic expectation because it would require trial counsel to raise his own ineffectiveness in post-verdict motions.