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COMMONWEALTH PENNSYLVANIA v. DAVID ASH (03/17/76)

SUPREME COURT OF PENNSYLVANIA


decided: March 17, 1976.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DAVID ASH, APPELLANT

COUNSEL

Thomas J. Tomalis, Ronald J. Wydo, Thomas J. Glenn, Jr., Wilkes-Barre, for appellant.

Patrick J. Toole, Jr., Dist. Atty., Charles D. Lemmond, Jr., 1st Asst. Dist. Atty., Jerry B. Chariton, Asst. Dist. Atty., for appellee.

Jones, C. J., and Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Roberts, J., took no part in the consideration or decision of this case.

Author: Per Curiam

[ 466 Pa. Page 472]

OPINION OF THE COURT

David Ash plead guilty to murder generally in Luzerne County. A degree of guilt hearing ensued and subsequently, a finding of guilt of murder in the first degree was entered by the court. One week later, no post trial motions having been filed, the court sentenced Ash to life imprisonment. A direct appeal from the judgment of sentence was then filed in this Court asserting certain errors in the prosecution process.

When the appeal was presented and the record disclosed the claims of error had not been properly preserved for appellate review because of the failure to file post trial motions in the trial court,*fn1 we remanded the record to that court to determine if the decision by Ash not to file post trial motions was knowing and intelligent. See Commonwealth v. Ash, 461 Pa. 670, 337 A.2d 821 (1975).*fn2

[ 466 Pa. Page 473]

Pursuant to our mandate, the trial court conducted a hearing and then found Ash had been timely informed of his right to file post trial motions and knowingly and intelligently decided against it. The record fails to support the finding that Ash's decision was knowing and intelligent.

The record does establish that before sentence was imposed, the court informed Ash of his right to file post trial motions and called his attention to the fact that no such motions had been filed. However, the court did not advise Ash that failure to file these motions would have a consequential effect on his right to appeal. Additionally, it is undisputed in the record that Ash's trial counsel were of the opinion that since the conviction resulted from a guilty plea, no post trial motions were required to preserve errors for appellate review.*fn3 It was after receiving this advice from his counsel that Ash decided not to file any post trial motions. Under the circumstances, his decision was not knowing and intelligent.

The record is, therefore, again remanded to the trial court with directions to permit Ash to file post trial motions. If said motions are decided against Ash he may, if he desires, file a new appeal.


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