decided: August 17, 1977.
COMMONWEALTH OF PENNSYLVANIA
EMMANUEL BEATTY, APPELLANT
Calvin S. Drayer, Jr., Asst. Public Defender, Chief, Appeals Div., for appellant.
William T. Nicholas, Dist. Atty., Ross Weiss, 1st Asst. Dist. Atty., Eric J. Cox, Bert M. Goodman, Asst. Dist. Attys., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Eagen, C. J., and Nix and Manderino, JJ., concur in the result.
[ 474 Pa. Page 106]
On March 20, 1974, appellant, Emmanuel Beatty, pleaded guilty to charges of robbery and aggravated assault and battery. He was sentenced on June 4, 1974 to a term of not less than four nor more than ten years imprisonment. Beatty filed a timely appeal from the judgment of sentence to the Superior Court, but on the advice of counsel Beatty later withdrew the appeal and simultaneously filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp.1976-1977) [hereinafter "the Act" or "PCHA"].*fn1 Appellant's petition was dismissed by the PCHA court without an evidentiary hearing. On appeal from the dismissal, a majority of the Superior Court affirmed, holding that Beatty's withdrawal of his prior direct appeal constituted a waiver, under section 4(b)(1) of the Act,*fn2 of his right to challenge collaterally the lawfulness of his guilty plea. Commonwealth v. Beatty, 236 Pa. Super. 137, 344 A.2d 591 (1975). This Court then granted allocatur to determine whether appellant was entitled to an evidentiary hearing on his claim. For the reasons set forth below, we vacate the orders of the Superior Court and the PCHA court, and remand the case to the court of common pleas for such a hearing.
Section 9 of the PCHA provides:
[ 474 Pa. Page 107]
"If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner." 19 P.S. § 1180-9 (Supp.1976-1977).
In accordance with this provision this Court has held that a PCHA petition may be summarily dismissed if the facts alleged in the petition would not, even if proved, entitle the petitioner to relief.*fn3 E. g., Commonwealth v. O'Donnell, 472 Pa. 25, 370 A.2d 1209 (1977); Commonwealth v. Hargrove, 434 Pa. 393, 254 A.2d 22 (1969).
In this case, the PCHA petition alleged in effect that Beatty's guilty plea was unlawfully induced by assurances by his trial counsel that upon being sentenced appellant would not be incarcerated, but instead would receive a civil commitment under section 410 of the Mental Health and Mental Retardation Act, Act of October 20, 1966, Special Sess. No. 3, P.L. 98, Art. IV, § 410, 50 P.S. § 4410 (Supp.1976-1977). In our view, this claim is not "patently frivolous" within the meaning of section 9 of the Act. See Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); cf. Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971). Since appellant's claim depends upon proof
[ 474 Pa. Page 108]
of facts outside the record his right to relief can be established only through an evidentiary hearing. He is entitled to such a hearing, however, only if he has not waived his right to challenge collaterally the validity of his plea. The Superior Court having held that a waiver occurred, we must consider the correctness of that ruling.
Central to the Superior Court's conclusion that a waiver occurred was its determination that appellant could and should have attacked his guilty plea on direct appeal.*fn4 Our recent cases, however, have corrected whatever misapprehension may have existed on this score. It is now settled that the proper procedure for attacking a guilty plea following the entry of judgment of sentence is to file with the trial court which accepted the plea a petition to withdraw the plea. Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975); Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973).*fn5 See also Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976) (opinion announcing decision of the Court); Commonwealth v. Robinson, 442 Pa. 512, 276 A.2d 537 (1971).*fn6 But see Commonwealth v. Tunnell, 463 Pa. 462, 345
[ 474 Pa. Page 109]
A.2d 611 (1975); Commonwealth v. Fields, 463 Pa. 244, 344 A.2d 814 (1975); Commonwealth v. Hines, 461 Pa. 271, 336 A.2d 280 (1975). Since its decision in the case at bar the
[ 474 Pa. Page 110]
Superior Court has itself held that a defendant may not attack the validity of a guilty plea on direct appeal without first filing a petition to withdraw the plea with the trial court. Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975). The purpose of this procedure was wellstated by Judge Cercone:
"The same principles which mandate that issues not raised in post-verdict motions will not be considered on direct appeal mandate that an attack on a guilty plea on direct appeal must be preceded by the filing of a petition to withdraw such plea with the court below. The enforcement of this procedure will give the court which accepted the plea the opportunity to allow the withdrawal of the plea if it was in fact not voluntarily and understandingly made. If the defendant remains unsatisfied with the lower court's disposition of his petition to withdraw his guilty plea, then at that point the issue would be properly preserved and ripe for appellate review. Strict adherence to this procedure could, indeed, preclude an otherwise costly, time consuming, and unnecessary appeal to this court." Id. 237 Pa. Super. at 338-39, 352 A.2d at 141.
See also Commonwealth v. Rodgers, 465 Pa. 379, 384, 350 A.2d 815, 818-19 (1976) (Pomeroy, J. concurring, joined by Manderino, J.).
Since guilty pleas are properly attacked in the first instance in the trial court, it follows that appellant cannot be faulted for failing to attack his plea on direct appeal. To hold otherwise would create the anomaly of penalizing appellant for failing to follow a procedure now recognized as incorrect.*fn7
[ 474 Pa. Page 111]
The order of the Superior Court affirming the dismissal of appellant's PCHA petition is vacated, the order of the court of common pleas is vacated, and the record is remanded to the court of common pleas for proceedings consistent with this opinion.
I agree with the majority that appellant has not waived his claim. I concur in the result because I do not agree with the majority's analysis of the issue.
[ 474 Pa. Page 112]
The proper procedure to challenge the validity of a guilty plea is to file a petition to withdraw the plea with the court which accepted the plea. Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975); Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975). However, appellant filed his appeal before the decisions which mandated this procedure. Accordingly, at the time appellant sought to challenge the validity of his plea, he had the option of petitioning the trial court to withdraw the plea, see Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973), or attacking the validity of the plea on direct appeal,*fn1 see Commonwealth v. Page 112} Zakrzewski, supra; Commonwealth v. Lee, supra. In this case, appellant followed neither route, but instead sought relief under the Post Conviction Hearing Act [hereinafter "PCHA"].*fn2 Section 4 of the PCHA*fn3 provides:
"(b) For the purposes of this act, an issue is waived if:
(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure."
The majority states that "[s]ince guilty pleas are properly attacked in the first instance in the trial court, it follows that appellant cannot be faulted for failing to attack his plea on direct appeal." I cannot agree with the majority's analysis.
First, in this case, appellant was free to assert his claim on direct appeal without first filing a petition in the trial court. See note 1, supra and accompanying text. Moreover, even if appellant should have first sought relief in the trial court, it does not follow that discontinuance of his appeal was proper. In that situation, the proper procedure would have been to
[ 474 Pa. Page 113]
assert, in the appeal, that some extraordinary circumstance, such as ineffective assistance of counsel, excused the failure to petition the trial court to withdraw the plea. Failure to follow this procedure on appeal creates a presumption of waiver if the validity of the guilty plea is subsequently challenged in a PCHA proceeding. See 19 P.S. § 1180-4 (Supp.1976); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). I cannot agree with the majority's suggestion that one waiver -- failure to raise a claim in the trial court, somehow excuses a second waiver -- failure to appeal.
In my view, since appellant was not obliged, in 1974, to petition the trial court and did not waive his claim by failing to do so, see note 1, supra, the sole issue is whether appellant waived his claim that his plea was invalid when he failed to appeal from judgment of sentence. I conclude that appellant's failure to appeal was not knowing and understanding and therefore did not constitute a waiver under section 4 of the PCHA.
Every person convicted of a crime has the right to have the conviction and sentence reviewed through appeal. E.g., Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970). While a defendant may waive his right to appeal, this Court has stated that
"to be an effective waiver, the accused must be aware of all of his rights incident to an appeal, and with such knowledge intentionally abandon or fail to exercise them . . . ."
Id. 438 Pa. at 263, 264 A.2d at 698; accord, Commonwealth v. Jones, 447 Pa. 228, 286 A.2d 892 (1971); Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968); Commonwealth v. Henderson, 231 Pa. Super. 190, 331 A.2d 824 (1974); Commonwealth v. Wallace, 229 Pa. Super. 172, 323 A.2d 182 (1974). See generally Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
Here, appellant clearly wanted to exercise his right of appeal. The appeal was withdrawn only because counsel
[ 474 Pa. Page 114]
erroneously advised him that review could be effectuated by filing a PCHA petition. The right of appeal is personal to the accused and cannot be waived by a tactical decision of counsel. ABA Project on Standards For Criminal Justice, Standards Relating to Criminal Appeals § 2.2(b) (Approved Draft 1970). See Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 233 A.2d 220 (1967). See generally Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972); Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967), cert. denied, 390 U.S. 983, 88 S.Ct. 1104, 19 L.Ed.2d 1281 (1968). It cannot be concluded that appellant, as a lay person, understood that counsel's action amounted to an abandonment of his appellate rights. In these circumstances, appellant was not "aware" of his rights and did not intelligently waive his right to appeal from his conviction. See Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 220 A.2d 883 (1966) (counsel's erroneous advice that defendant could be convicted for murder of the first degree if his conviction for murder of the second degree was reversed "precludes a finding that the decision to forego . . . an appeal was an intelligent waiver of that right"), followed in Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 233 A.2d 220 (1967). Compare Murch v. Mottram, 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 194 (1972) (per curiam).
Accordingly, appellant's claim is not waived under section 4 of the PCHA. In light of our decisions in Commonwealth v. Zakrzewski, supra, and Commonwealth v. Lee, supra, he should be permitted to file a petition to withdraw his plea in the trial court. Since that is the effect of the majority's mandate, I concur in the result.