No. 538 January Term 1976, Appeal from the Order of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, denying Post Conviction Relief at No. 111 December Sessions 1971
Robert Jay Vedatsky, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., concurs in the result. Manderino, J., files a dissenting opinion.
On October 2, 1972, Thomas LaSane plead guilty to murder generally in the Court of Common Pleas of Philadelphia and the Commonwealth certified the degree of guilt rose no higher than murder of the second degree. The trial court accepted the plea, found LaSane guilty of murder of the second degree, and imposed a sentence of not less than seven nor more than twenty years imprisonment. No post-verdict
motions were filed and no appeal from the judgment of sentence was entered. On April 23, 1975, LaSane filed a petition for relief 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.1977-78) [Hereinafter: PCHA]. Counsel was appointed to assist him. Following a hearing, relief was denied. This appeal is from that order.
LaSane claims the post-conviction hearing court erred in denying relief for the following reasons:
1) his guilty plea was ineffective because the record does not show the plea was knowing, intelligent, and voluntary;
2) he was denied effective assistance of counsel; and,
3) he was denied his constitutional right to a speedy trial.
Additionally, in a "Reply Brief," LaSane states in pertinent part:
"[the record shows he was] confused and bewildered by the entire guilty plea process [and was p]ressured by his family, inadequately represented by his attorneys, and unclear as to precisely what was taking place, [and thus] did not knowingly and voluntarily enter a guilty plea, [and i]f these arguments are accepted, they clearly demonstrate that LaSane did not knowingly and understandingly waive his right to appeal from his conviction."
To be eligible for relief under the PCHA, a petitioner must prove, inter alia:
"That the error resulting in his conviction and sentence has not been . . . waived."
Section 3(d) of the PCHA, 19 P.S. § 1180-3(d) (Supp.1977-78).
Furthermore, Section 4(b) of the PCHA, 19 P.S. § 1180-4(b) (Supp.1977-78), provides:
"For 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."
Finally, Section 4(c) of the PCHA, 19 P.S. § 1180-4(c) (Supp.1977-78), provides:
"There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure."
Since the validity of LaSane's plea was cognizable on direct appeal, Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. Hill, 457 Pa. 1, 319 A.2d 886 (1974), the issue was waived and could not be raised in the post-conviction proceeding unless LaSane either rebutted the presumption that the failure to raise the issue on direct appeal was knowing and understanding or alleged and proved the existence of an extraordinary circumstance justifying the failure to raise the issue. LaSane argues the issue of the validity of his plea is not waived because extraordinary circumstances exist to excuse his failure to raise the claim on direct appeal, namely, a deprivation of his ...