Appeal from the Order of the Court of Common Pleas, Criminal Division, of Armstrong County, at No. 49 March Term, 1973.
Joseph E. Breman, Kittanning, for appellant.
James H. Owen, Assistant District Attorney, and Joseph A. Nickleach, District Attorney, Kittanning, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Watkins, President Judge, and Cercone and Van der Voort, JJ., dissent.
[ 248 Pa. Super. Page 498]
Appellant contends that the on-the-record colloquy prior to his guilty plea was deficient because the court failed both to establish a factual basis for the plea and to explain the elements of the offense charged.*fn1 He also alleges that his trial counsel was ineffective for failing to challenge the
[ 248 Pa. Super. Page 499]
plea on direct appeal from the judgment of sentence. We agree and, therefore, vacate the judgment of sentence and permit appellant to withdraw his guilty plea.
Appellant stated that on December 28, 1972, while at the home of appellant's father, appellant and a companion consumed alcoholic beverages during most of the day. On their way to Pittsburgh, they stopped at several taverns where they continued drinking. The men became lost and stopped the car in Kittanning, Armstrong County, where they entered the Agway building and removed several items. The police, who were summoned by an alarm, arrested appellant and his companion on the above date.
[ 248 Pa. Super. Page 500]
On December 11, 1973, appellant entered a plea of guilty to burglary*fn2 which the court accepted. On April 4, 1974, the lower court sentenced appellant to a term of imprisonment of four to twelve years. On December 2, 1974, appellant filed a petition under the Post Conviction Hearing Act*fn3 (hereinafter PCHA). The court appointed counsel to represent appellant and he filed an amended PCHA petition. On March 24, 1976, a PCHA hearing was held before the same judge who accepted appellant's guilty plea. The court denied post conviction relief and this appeal followed.
Appellant contends that his original counsel was ineffective for failing to raise the inadequacy of his guilty plea on direct appeal.*fn4 Section three of the PCHA requires that:
"To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under Section 5 ...