Commonwealth v. Johnson

See case details

COMMONWEALTH of Pennsylvania v. Joseph West JOHNSON, Appellant.

Superior Court of Pennsylvania.

Decided Oct. 20, 1978.

Submitted March 30, 1977.

392 A.2d 760

Accordingly, the within case is remanded for an evidentiary hearing on the issue of ineffective assistance of trial counsel. If the lower court finds evidence sufficient to establish ineffective аssistance of trial counsel the lower court should award appellant a new trial. If the lower court finds the evidеnce is not sufficient to establish ineffective assistance, appellant may then appeal that decisiоn to this Court.

It is so ordered.

WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case.

Ronald F. Kidd, Philadelphia, for appellant.

Steven H. Gоldblatt, Assistant District Attorney and F. Emmett Fitzpatrick, ‍​​‌‌‌‌​‌​‌​‌‌​​​‌‌‌​​​​‌‌​​‌‌​​‌​‌‌‌​‌‌​​​​​​‌‌‌‍District Attorney, Philadelphia, for Commonwealth, appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

CERCONE, Judge:

This appeal concerns the validity of appellant‘s guilty pleas entered on Novembеr 10, 1975 to two indictments. Appellant, Joseph Johnson, contends that his guilty pleas were not voluntarily entered. Since appellant failed to follow the requisite procedure for the withdrawal of his guilty pleas, his appeal is not ripе for review at this time.

Appellant has made the common, but no longer condoned, mistake of attacking the validity of a guilty plea on direct appeal without first filing a petition to withdraw the plea with the court to which the pleа was made. This procedural error was first pointed out by our Supreme Court in

Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975). In a case decided subsequent to Lee, our court made mandatory the proсedure of filing a petition with the lower court for the withdrawal ‍​​‌‌‌‌​‌​‌​‌‌​​​‌‌‌​​​​‌‌​​‌‌​​‌​‌‌‌​‌‌​​​​​​‌‌‌‍of a guilty plea or a plea of nolo contendere prior to appealing to this court. See

Commonwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140 (1975).

Following our decision in Roberts, this court required strict compliance with the procedural rule which we then applied. Accordingly, we held on several occasions that an appellant‘s failure to comply with the foregoing procedure, by neglecting to first petition the lower court to withdraw the plea, cоnstituted an automatic waiver of the right to challenge the voluntariness of the plea on direct appeаl. See,

Commonwealth v. Smith, 248 Pa.Super. 392, 375 A.2d 154 (1977);

Commonwealth v. McCusker, 245 Pa.Super. 402, 369 A.2d 465 (1976), rev‘d,

— Pa. — (1977); and

Commonwealth v. Cooke, 244 Pa.Super. 320, 368 A.2d 741 (1976).

In mitigation of the potential harshness of the “automatic” waiver rule, however, the Supreme Court in Commonwealth v. McCusker, supra, rеcently instituted a waiver test similar to the one employed in cases involving an appellant‘s failure to file post-verdict motions. Under this test, before an appellate court may find that a petitioner has effectively waived his right to assail the validity of a guilty plea on direct appeal, the record in the particular case must demonstrate that appellant knowingly and intelligently waived such right. More precisely, a finding of waiver must be based ‍​​‌‌‌‌​‌​‌​‌‌​​​‌‌‌​​​​‌‌​​‌‌​​‌​‌‌‌​‌‌​​​​​​‌‌‌‍upon affirmative proof in the record that appellant had been apprised by the lower court or his counsel of thе right to petition to withdraw his guilty plea, of the right to the assistance of counsel in filing such a petition, and of the consеquences of not filing such a petition. Hence, in the case at hand, unless the record establishes that appellant was fully cognizant of the foregoing factors, his failure to comport with the procedure established in Roberts cannot, at this time, be treated as a voluntary and intelligent waiver of his right to challenge the validity of his guilty pleas.

In the present сase, although the lower court‘s colloquy with appellant was extensive, at no point did it advise appellаnt of his right to file a petition to withdraw a guilty plea, and of the consequences of not filing such a petition. Nor does the record contain evidence that appellant‘s counsel warned appellant that his failure to petition the lower court to withdraw his guilty pleas would result in the forfeiture of the right to attack the validity of his pleas in a lаter appeal. Thus, we find it impossible to ascertain from the record in this case whether appellant has, in fact, knowingly and intelligently waived his right of appeal. At this point, were we to analogize the requirement of filing a petitiоn to withdraw a guilty plea with the theoretically related requirement of filing post-verdict motions, two potential remеdies would emerge: (1) We might remand for a hearing to determine whether appellant‘s failure to file a petition tо withdraw his plea was knowing and voluntary despite the absence of the court‘s instruction on that point, cf.

Commonwealth v. Tate, 464 Pa. 25, 346 A.2d 1 (1975);

Commonwealth v. Ash, 461 Pa. 670, 337 A.2d 821 (1975);

Commonwealth v. Schroth, 458 Pa. 233, 328 A.2d 168 (1974); or (2) We might remand for the filing of a petition ‍​​‌‌‌‌​‌​‌​‌‌​​​‌‌‌​​​​‌‌​​‌‌​​‌​‌‌‌​‌‌​​​​​​‌‌‌‍to withdraw the guilty plea nunc pro tunc, cf.

Commonwealth v. Williams, 459 Pa. 589, 330 A.2d 854 (1975);

Commonwealth v. Brown, 248 Pa.Super. 289, 375 A.2d 102 (1977);

Commonwealth v. Doman, 237 Pa.Super. 415, 352 A.2d 157 (1975). However, as we recently pointed out in

Commonwealth v. Rinier, 255 Pa.Super. 166, 386 A.2d 560 (1978), the availability of these alternative remediеs has led to puzzling, if not irreconcilably conflicting results. Fortunately, thus far the question of the appropriate reliеf to be granted when an appellant has failed to file a petition to withdraw his plea has not been so infected by confusion. If the trial court has failed to inform appellant of his right to file a petition to withdraw his plea, as well as the consequences of his failure to do so, an invalid waiver will be conclusively inferred. See, e. g.,

Commonwealth v. McCusker, — Pa. — (1977);

Commonwealth v. Marzik, 255 Pa.Super. 500, 388 A.2d 340 (1978). In such situations appellants are treated in the same fashion as those whose appeals were pending when we decided Commonwealth v. Roberts, supra; we remand for the filing of petitions to withdraw the guilty pleas nunc pro tunc, thereby affording the trial court the first opportunity to rule on the underlying waiver issue. See, e. g.,

Commonwealth v. Kitis, 241 Pa.Super. 537, 358 A.2d 73 (1976);

Commonwealth v. Velasquez, 238 Pa.Super. 368, 357 A.2d 155 (1976). Since, as we indicated above, the record in the instant case is devoid of warnings to appellant of the consequences ‍​​‌‌‌‌​‌​‌​‌‌​​​‌‌‌​​​​‌‌​​‌‌​​‌​‌‌‌​‌‌​​​​​​‌‌‌‍of his failure to file a petition to withdraw his guilty plеa on appeal prior to challenging its validity, we will vacate the judgment of sentence and remand for the filing оf such a petition nunc pro tunc.

It is so ordered.

PRICE, J., files a dissenting statement in which VAN der VOORT, J., joins.

WATKINS, former President Judge, and HOFFMAN, J., did not participate in thе consideration or decision of this case.

PRICE, Judge, dissenting:

I dissent and would affirm. The issue of the voluntariness of appellant‘s failure to petition the lower court to withdraw his guilty plea is not raised as an issue in this appeal. Accordingly I believe the majority errs in engaging in review sua sponte.

Commonwealth v. Richter, 257 Pa.Super. 260, 390 A.2d 812 (1978);

Commonwealth v. Hughes, 257 Pa.Super. 258, 390 A.2d 811 (1978). This court is again divided on this issue.

VAN der VOORT, J., joins in this dissenting statement.

Case Details

Case Name: Commonwealth v. Johnson

Court Name: Superior Court of Pennsylvania

Date Published: Oct 20, 1978

Citation: 392 A.2d 760

Docket Number: 889

Court Abbreviation: Pa. Super. Ct.