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COMMONWEALTH PENNSYLVANIA v. KEITH MCKELVEY (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
KEITH MCKELVEY, APPELLANT



No. 35 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Mercer County, Criminal Division at No. 21 June Sessions, 1975.

COUNSEL

Nicholas S. Kladitis, Assistant Public Defender, Mercer, for appellant.

Charles S. Hersh, Assistant District Attorney, Sharon, and Samuel J. Orr, IV, District Attorney, Greenville, for Commonwealth, appellee.

Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 257 Pa. Super. Page 411]

Appellant Keith McKelvey was indicted on charges of burglary, theft by unlawful taking, theft by receiving, and conspiracy. On July 11, 1975, appellant entered a guilty plea to burglary, and pursuant to a plea agreement, the remaining charges were nol prossed. Appellant did not appeal the sentence or petition the lower court to permit the withdrawal of the plea. On July 8, 1976, appellant filed a pro se P.C.H.A. petition in which he alleged that the pre-plea colloquy was defective because it did not demonstrate a knowing and voluntary waiver of his constitutional right to a jury trial.

The primary question in this appeal is whether appellant waived his right to a determination of this issue under sections 3 and 4 of the Post Conviction Hearing Act.*fn1 The Commonwealth contended below, as it does on this appeal, that appellant's guilty plea attorney met with appellant several days after the sentencing hearing and was told not to take an appeal because appellant wanted to serve his sentence and be finished with the matter. Appellant's previous counsel testified to these facts at the P.C.H.A. hearing. Appellant testified in a contrary manner, stating that counsel failed to perfect an appeal despite a request that he do so. The lower court never reached the issue since it determined that the pre-plea colloquy was sufficient to establish the knowing and voluntary entry of the plea.

[ 257 Pa. Super. Page 412]

Section 3(d) of the Post Conviction Hearing Act [19 P.S. ยง 1180-3(d) (Supp. 1977-78)], requires that a petitioner allege and prove that the error resulting in his conviction and sentence has not been finally litigated or waived. Recent cases of both this court and the supreme court have held that in certain circumstances a P.C.H.A. petition alleging the involuntariness of a guilty plea will be treated as a petition to withdraw in accordance with Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975). Commonwealth v. Beatty, 474 Pa. 104, 376 A.2d 994 (1977); Commonwealth v. Schwartz, 251 Pa. Super. 36, 379 A.2d 319 (1977). Under the Roberts procedure, there is no specific requirement, as there is under the Post Conviction Hearing Act, that a defendant allege and prove the absence of a waiver.*fn2 We conclude that Beatty and Schwartz do not apply to the facts of the instant case, and appellant must therefore comply with the requirements of the Post Conviction Hearing Act.

First, the rule in Roberts requiring the filing of a petition to withdraw with the lower court prior to an appeal from the entry of a guilty plea was designed simply to promote judicial economy.

[ 257 Pa. Super. Page 413]

"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." Commonwealth Page 413} v. Roberts, supra, 237 Pa. Super. at 338-39, 352 A.2d at 141.

The procedure in Roberts was intended to apply only to those situations where a defendant intends to file a direct appeal from the entry of a guilty plea. It was not intended as a substitute procedure for those cases which previously would ...


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