234 Pa. Super. 236 | Pa. Super. Ct. | 1975
Lead Opinion
Opinion by
On February 19, 1974, appellant pleaded guilty to charges of burglary and larceny. He was sentenced and no direct appeal was taken. While serving his sentence appellant filed a petition pursuant to the Post Conviction Hearing Act.
Appellant’s primary claim is that the on-the-record colloquy which preceded the court’s acceptance of his guilty plea did not disclose that the elements of the crimes charged were outlined in understandable terms. See Commonwealth v. Ingram, 455 Pa. 198 (1974). We must agree with appellant. The record is silent on this point except for the following question posed to appellant by his trial counsel:
“Have I explained the charges against you, the burglary and the larceny and the possible punishment for those charges and any possible defenses you might have?”
It is clear that this question does not meet the very specific requirements mandated by Commonwealth v. Ingram, supra, and therefore appellant’s PCHA petition cannot be classified as patently frivolous.
However, simply because appellant has, what appears to be, a valid claim does not in itself entitle him to PCHA relief. Section 3 of the PCHA states:
“To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under
(d) That the error resulting in his conviction and sentence has not been finally litigated or waived.”
Section 4 of the PCHA defines “waived” as follows:
“(b) For the purposes of this act, an issue is waived if:
(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.”
In the instant case appellant failed to raise the issue concerning the guilty plea on direct appeal and therefore we must assume that such failure was knowingly and understandingly made. The appellant can overcome this presumption and thereby gain PCHA relief by showing the existence of extraordinary circumstances which justify his failure to raise the issue on direct appeal. In his PCHA petition appellant has attempted an explanation of his failure to raise the guilty plea issue on direct appeal, by claiming ineffective assistance of counsel. The Pennsylvania Supreme Court has held that ineffective assistance of counsel does constitute “extraordinary circumstances” which would entitle one to PCHA relief. Commonwealth v. Wideman, 453 Pa. 119, 123 (1973).
Unfortunately we cannot now, on the basis of the record, determine if trial counsel’s action in not raising the issue on appeal had a reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel.
Therefore this case is remanded for a hearing pursuant to appellant’s PCHA petition.
. Act of January 25, 1966, P.L. (1965) 1580, §§ 1 et seq., eifective March 1, 1966. 19 P.S. §§ 1180-1 et seq. Hereinafter referred to as PCHA.
. Section 9 of the PCHA states: “However, the court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner.”
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent because in my judgment when a defendant in open court says his counsel has explained to him the charges of burglary and larceny (of which he was convicted) there is adequate proof on the record that the elements of the crimes charged were outlined to the defendant in understandable terms.
Watkins, P. J., joins in this dissenting opinion.