decided: March 20, 1970.
Appeal from order of Court of Common Pleas of Elk County, May T., 1964, No. 81, in case of Commonwealth v. Thomas W. Jones.
Charles I. Houston, for appellant.
Norbert J. Powell, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts.
[ 438 Pa. Page 87]
Appellant pleaded guilty to murder generally on February 24, 1965; he was then found guilty of first degree murder and sentenced to life imprisonment. No appeal was taken. In February of 1967 he filed a petition pursuant to the Post Conviction Hearing Act alleging, inter alia, that he was denied his right to appeal. His petition was dismissed without appointment of counsel or an evidentiary hearing. We reversed and remanded for a hearing on his right to appeal. Commonwealth v. Jones, 428 Pa. 208, 236 A.2d 521 (1968). Following a counseled evidentiary hearing, the PCHA
[ 438 Pa. Page 88]
hearing court held that appellant had been denied his right to appeal. Post-trial motions were filed and denied, and this appeal followed.
One of the reasons assigned by appellant for granting a new trial was that his guilty plea was not knowingly and intelligently entered. On the state of this record, however, we cannot make any decision on this issue. For although this claim presents a question of fact, there has never been an evidentiary hearing on it. In view of the inadequate on-the-record colloquy,*fn1 appellant's claim is not patently frivolous, and if, as he alleges, he was ignorant of the effect of a guilty plea and of the alternatives available to him, he will be entitled to a new trial.
A hearing should have been held on the voluntariness of the plea before the post-trial motions were denied. Issues of fact, whether raised in a PCHA petition or in a motion for a new trial,*fn2 necessitates the holding of an evidentiary hearing so that they may be properly resolved. This case must, therefore, be remanded for a hearing on whether appellant's plea was voluntarily entered.*fn3
[ 438 Pa. Page 89]
The order of the Court of Common Pleas of Elk County is reversed and the case remanded for further proceedings consistent with this opinion.
Order of court below reversed and case remanded.