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COMMONWEALTH PENNSYLVANIA v. MICHAEL D. EAGLE (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL D. EAGLE, APPELLANT



Appeal from the Order of HONEYMAN, J., in the Court of Common Pleas, Montgomery County, No. 3678 October Term, 1974, and No. 509 October Term, 1973.

COUNSEL

Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.

James A. Cunningham, Assistant District Attorney, and William T. Nicholas, District Attorney, Norristown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., would remand for a hearing on Pcha counsel's alleged ineffective assistance pursuant to Commonwealth v. Twiggs, Author: Jacobs

[ 248 Pa. Super. Page 270]

This appeal arises from the dismissal of appellant's PCHA petition for relief based on two allegedly unlawful guilty pleas, and a claim of ineffective assistance of counsel. Following an evidentiary hearing, the court below determined that appellant's claims for collateral relief had been waived. For the reasons that follow, we affirm the order of the court below denying PCHA relief.

On March 5, 1974, appellant, represented by Attorney Prince, pleaded guilty to charges of burglary and conspiracy. He was subsequently sentenced to time served on the conspiracy charge, and a fine, costs, partial restitution and five years probation for the burglary. No appeal was taken.

On January 24, 1975, a hearing was held in the court below to determine if appellant had violated his probation by virtue of new burglary charges. Appellant was represented by Attorney Linderman, and entered pleas of guilty to burglary and conspiracy. The court accepted the pleas, revoked the prior probation, and entered concurrent sentences of three to ten years on the old and new burglary indictments. Again, no appeal was taken.

Appellant subsequently filed a pro se PCHA petition alleging that his guilty pleas were unlawfully induced and that he was denied the effective assistance of counsel. The court appointed Attorney Huganir to represent appellant, and a supplemental PCHA petition was filed. After denial of PCHA relief following an evidentiary hearing, Attorney Drayer prosecuted this appeal on appellant's behalf, alleging involuntariness of both guilty pleas and ineffective assistance of Attorneys Prince, Linderman and Huganir.

Initially we note that appellant's claims of ineffective assistance of Attorneys Linderman and Huganir cannot now be considered by us, because of failure to raise them in either PCHA petition before the court below. Commonwealth v. Adams, 236 Pa. Super. 82, 344 A.2d 905 (1975). In addition, we are precluded from examining the voluntariness of appellant's second guilty plea, since no motion was made

[ 248 Pa. Super. Page 271]

    to withdraw the plea, and no direct appeal was taken from the sentence entered upon that plea. Under these circumstances, appellant has waived challenge to the second plea absent extraordinary circumstances.*fn1 Since appellant raised no extraordinary circumstances below in connection with his second guilty plea, and indeed expressed satisfaction with his representation by Attorney Linderman,*fn2 we deem that issue waived for purposes of this appeal.

We are left with appellant's claim that his first guilty plea was involuntary. While no motion was made to withdraw this plea, and no appeal taken from the judgment of sentence on the plea, appellant has alleged ineffective assistance of counsel, which is an extraordinary circumstance under the PCHA precluding waiver. Commonwealth v. Green, 234 Pa. Super. 236, 338 A.2d 607 (1975). The trial court agreed with the Commonwealth that this claim was waived under Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). We do not agree. In Dancer, our Supreme Court held that an ineffective counsel claim may not be raised in PCHA proceedings where the petitioner was represented by different counsel on direct appeal, and failed to raise the ineffectiveness of trial counsel. The rationale of Dancer is inapposite here because Dancer was decided three days after the probation revocation hearing,*fn3 and further no direct appeal was taken. A probation revocation hearing is not an appeal within the meaning of Dancer and therefore not a proper forum for challenging the validity of the guilty ...


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