No. 2455 October Term, 1976, Appeal from an Order of August 9, 1976 of the Court of Common Pleas, Criminal Division of Bucks County, on Indictment Number 142 of 1959.
Michael A. Klimpl, Assistant Public Defender, Doylestown, for appellant.
Stephen B. Harris, First Assistant District Attorney, Warrington, and Kenneth G. Biehn, District Attorney, Doylestown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 256 Pa. Super. Page 121]
This is an appeal from an order of the Court of Common Pleas of Bucks County, denying appellant's petition for relief under the Post Conviction Hearing Act.*fn1 We affirm the decision of the lower court.
Pursuant to a guilty plea to burglary, larceny, receiving stolen goods, and conspiracy, appellant, Lee Crowder, was sentenced in September, 1959, to one and one half to ten years in a state penitentiary. In 1968, appellant filed his first petition under the Post Conviction Hearing Act, alleging, inter alia, that his guilty plea was not knowingly and intelligently entered. Court appointed counsel represented Crowder at the hearing on the petition wherein the judge denied relief.*fn2 On appeal to the Superior Court the lower court's decision was affirmed per curiam.*fn3 Appellant filed his second petition under the Post Conviction Hearing Act in 1970. This petition involved an issue not related to this appeal, which was also dismissed after a hearing.*fn4 A third petition was filed in 1975 wherein the propriety of the entry of the guilty plea was raised again. The lower court judge dismissed the petition, without a hearing, for the reasons that the issues raised had already been litigated or waived in the proceedings on the prior two petitions.
[ 256 Pa. Super. Page 122]
The issue before this court is whether the propriety of the 1959 guilty plea should be considered. In answering this question, we must first look to the language of the Post Conviction Hearing Act. Section 1180-4(a)(2) reads that an issue is finally litigated if
"The Superior Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals."
In the instant case, appellant's contention concerning his guilty plea was finally disposed of under this section of the PCHA. This court affirmed the lower court's decision dismissing the first petition, and appellant did not appeal to the Supreme Court. Nor did he consistently raise the issue in his second petition under the PCHA, but waited until the third petition to again pose the guilty plea question.*fn5 Thus the issue of the propriety of the guilty plea was fully litigated at the time of the first petition under the PCHA and may not be reconsidered before us now.
Although we feel this reasoning disposes of the case, appellant's brief contends the case of Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) changed the law in regard to guilty pleas and that Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976) applied that change retroactively, and so, he argues his case involves extraordinary circumstances and the propriety of the guilty plea is not waived for our review here.*fn6
Assuming arguendo that appellant's assertion of "extraordinary circumstances" may be treated as an allegation that his failure to appeal the Superior Court decision was not knowing and understanding, we reject that allegation. ...