No. 851 April Term, 1976, Appeal from the Judgment of Sentence dated May 17, 1976, of the Court of Common Pleas of Washington County, Criminal Division, at No. 42 of 1976.
John P. Liekar, Assistant Public Defender, Canonsburg, for appellant.
Jess D. Costa, District Attorney, Washington, for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 259]
Appellant pleaded guilty to charges of robbery and a firearm's violation on May 17, 1976. Appellant now questions the voluntariness of his plea on direct appeal. He did not file a petition to withdraw his plea in the lower court.
Appellant's guilty plea occurred after this court's decision in Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975). Roberts requires that in order to attack a guilty plea on direct appeal, appellant must first file a petition to withdraw that plea in the court below since it is in the best position to initially correct any error which may have been committed. Appellant offers no reason for his failure to follow the proper procedure, and therefore, the issue of the validity of his guilty plea must be considered waived.
[ 257 Pa. Super. Page 260]
For the foregoing reasons, the judgment of sentence of the lower court is affirmed.
SPAETH, Judge, dissenting:
I dissent. The judgment of sentence should be vacated and the case remanded to allow appellant an opportunity to file post-guilty plea motions. See Commonwealth v. McCusker (No. 2850 Allocatur Docket, filed Sept. 21, 1977); Commonwealth v. Marzik, 255 Pa. Super. 500, 388 A.2d 340. Upon remand the lower court must advise appellant as provided in Rule 1405(c), Pa.R.Crim.P. 1405(c). Appellant should comply with the procedure set forth in Rule 321, Pa.R.Crim.P. 321. See ...