419 A.2d 137 | Pa. Super. Ct. | 1980
Appellant takes this appeal from the lower court’s denial of appellant’s Post-Conviction Hearing Act
On January 17, 1974, appellant, Samuel Foster, who was represented by counsel from the Defender Association of Philadelphia, entered a plea of nolo contendere on charges of carrying a concealed deadly weapon,
We, too, conclude that the lower court was in error for granting the Commonwealth’s petition for reconsideration. Not only is appellant’s argument meritorious but, additionally, there is no substantial question about appellant’s specificity on the facts. In his PCHA petition, appellant lists as one of the facts in support of his petition, “The court failed to advised [sic] me of all the legal elements of my alleged [sic] crime, nor did the court inform me of the maximum and minimum penalties.” This recitation is sufficiently specific under 19 P.S. § 1180-5(a)(4). Accordingly, we hereby reverse the order of he lower court (which granted the Commonwealth’s motion), reverse appellant’s conviction and remand for a new trial.
Reversed and remanded for a new trial.
. 19 P.S. § 1180-1 et seq. (Supp.1979).
. It has been held that a plea of nolo contendere is to be treated the same as a plea of guilty. See, e.g., Commonwealth v. Hayes, 245 Pa.Super. 521, 369 A.2d 750 (1976).
. The Act of June 24, 1939, P.L. 872, § 416, The Act of April 4, 1956, P.L. (1955), 1383, § 1, 18 P.S. § 4416 (1945).
. The Act of June 24, 1939, P.L. 872, § 705, 18 P.S. § 4705 (1945).
. The Act of June 24, 1939, P.L. 872, § 901, 18 P.S. § 4901 (1945).
. We note that appellant’s plea was entered a week before the Supreme Court handed down its decision of Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), in which the Court ruled that a guilty plea colloquy must be conducted on the record. Nevertheless, subsequently, in Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976), the Court made it clear that Ingram made no new law concerning the substance of such a colloquy, since even prior to Ingram an accused’s understanding of the nature and elements of the charges against him was essential to the validity of a guilty plea.
. Appellant did not take a direct appeal following the entry of his nolo contendere plea. Nevertheless, we do not find that appellant has waived his chance to argue trial counsel’s ineffectiveness for failing to see that a proper plea was entered and to advise appellant on this point. As the Supreme Court said in Commonwealth v. Dimitris, 484 Pa. 153, 398 A.2d 990, 991 (1979) (citations omitted),
“Although generally issues that could have been raised on direct appeal but are not so raised are considered waived, the waiver rule does not apply when in a PCHA proceeding, the issue of trial counsel’s ineffectiveness is raised . . [t]he failure to file a direct appeal and raise a claim of trial counsel’s ineffectiveness does not constitute a waiver where an appellant would be represented on appeal by his trial attorney.”
We conclude that the rule of Dimitris applies to the instant case, therefore, we find no waiver in appellant’s failure to take a direct appeal because trial counsel was ineffective in not advising appellant of the grounds for appeal. Furthermore, though appellant filed an earlier PCHA petition prior to the one in the instant case, this was an uncounseled petition which was summarily dismissed without a hearing by the lower court. Therefore, according to case law, appellant cannot be said to have waived or finally litigated this issue previously. Commonwealth v. Smith, 459 Pa. 583, 330 A.2d 851 (1975).
. In relevant part, this statute provides:
“a) A petition shall be in the following forms:
4) All facts within the personal knowledge of the petitioner must be set forth separately from other allegations of fact.”
. Obviously, the lower court was powerless to reverse its second ruling because the appeal had already been taken to this court. Pa.R.App.P. 1701(a).