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COMMONWEALTH v. ALTERIO (03/20/69)

decided: March 20, 1969.

COMMONWEALTH
v.
ALTERIO, APPELLANT



Appeal from judgment of Court of Quarter Sessions of Centre County, Jan. T., 1965, No. 8, in case of Commonwealth of Pennsylvania v. Vance Ray Alterio.

COUNSEL

John L. Geiser, for appellant.

Charles C. Brown, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Dissenting Opinion by Spaulding, J. Hoffman, J., joins in this dissent.

Author: Per Curiam

[ 214 Pa. Super. Page 126]

Judgment of sentence affirmed.

Disposition

Judgment affirmed.

Dissenting Opinion by Spaulding, J.:

I respectfully dissent. This is a nunc pro tunc direct appeal from a guilty plea entered October 26, 1964, on a charge of cheating by false pretense. On April 5, 1968, appellant filed a petition under the Post Conviction Hearing Act claiming only that he had been denied the right to appeal. On July 22, 1968, the court below granted appellant the right to appeal nunc pro tunc.

[ 214 Pa. Super. Page 127]

In my judgment the right to appeal was improperly granted. In cases other than homicide, a denial of the right to direct appeal from a guilty plea is not prejudicial since all claims cognizable on direct appeal may be raised in collateral proceedings. Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967). However, although denial of the right to appeal is not itself grounds for relief, the Supreme Court has indicated that a court should not dismiss a collateral attack claiming denial of the right to appeal from a plea unless it has made an independent determination of the legality of sentence and the voluntariness of the plea. Commonwealth v. Walters, 431 Pa. 74, n. 1 at 76, 244 A.2d 757 (1968).

The ultimate consequence of Stokes and Walters is that except in homocide cases, the grant of the right to direct appeal nunc pro tunc is never an appropriate form of relief if the petitioner has pled guilty. In every case, the post-conviction court is required to rule upon the claims cognizable upon direct appeal. If these claims are found to be without merit, the petition should be dismissed. Otherwise, the plea should be vacated and a new trial ...


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