No. 867 October Term, 1977, Appeal from the Order dated January 18, 1977, of the Court of Common Pleas of Montgomery County, at Nos. 157 and 158 of the January Term, 1976., Criminal.
Robert J. Edelmayer, Norristown, for appellant.
William T. Nicholas, District Attorney, Norristown, 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 Jacobs, President Judge, joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 414]
Appellant entered a guilty plea on April 27, 1976, to retail theft,*fn1 theft of movable property,*fn2 and conspiracy.*fn3 Following imposition of sentence no direct appeal was taken. Subsequently, appellant filed a petition under the Post Conviction Hearing Act, The Act of January 25, 1966, P.L. (1965) 1580 et seq. (19 P.S. § 1180 et seq.) (Supp.1978-79). Included in the petition was a request for permission to withdraw the plea. Appellant asserts on this appeal from the lower court's denial of his petition that guilty plea counsel was ineffective for failing to take a direct appeal and that the plea colloquy was inadequate. For the reasons set forth herein, we affirm.
[ 258 Pa. Super. Page 415]
We first turn to the waiver issue. We may not decide the adequacy of the guilty plea colloquy if the issue has been waived by failure to bring a direct appeal. Commonwealth v. Porter, 256 Pa. Super. 163, 389 A.2d 651 (1978). Appellant has waived the issue of the colloquy's adequacy unless it is deemed attributable to ineffectiveness of counsel, which constitutes an "extraordinary circumstance" and precludes waiver. Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976); Post Conviction Hearing Act, supra, 19 P.S. § 1180-4(b)(2). To determine whether counsel was ineffective we must determine whether the issue which he failed to raise on direct appeal had merit. In the instant case, a review of the record demonstrates that the issue raised by appellant on this appeal, the alleged inadequacy of the colloquy, lacks merit and therefore there was no ineffectiveness of counsel; the lower court's order is therefore affirmed.
Although we have determined that none of appellant's arguments regarding the adequacy of the colloquy are meritorious, we find one of the five worthy of some comment.*fn4 Appellant argues that the colloquy was inadequate because he was not advised on the record of the possible range of sentences for the crimes to which he was pleading guilty.
In the instant case, appellant's sentence resulted from a plea bargain which the assistant district attorney reviewed at the opening of the hearing and which the trial judge reiterated before imposing sentence. Certainly, the questioning or advising of an accused as to the permissible scope of sentences is an important element of a guilty plea colloquy, see Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976); Commonwealth v. McNeill, 453 Pa. 102, 305
[ 258 Pa. Super. Page 416]
A.2d 51 (1973). However, the omission of such advise from a colloquy where the plea has been negotiated, as occurred in the instant case, will not automatically invalidate the plea. Where a plea bargain has been entered into by an accused represented by counsel, the surrounding circumstances of the plea may sufficiently indicate that the appellant pleaded knowingly and voluntarily even though he was not apprised on the record of the possible range of sentence. An analysis of the nature of a plea bargain can lead to no other conclusion.
By pleading guilty in return for a plea concession, an accused, as every defense attorney realizes, can eliminate the possibility of a greater sentence following conviction at trial. See Brady v. U. S., 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Thus, just as a prosecutor uses a negotiated plea to reduce the unpredictability of trial, so an accused uses a negotiated plea to diminish the uncertainty of sentencing. An accused enters into a plea bargain so that he may gain some control over the sentencing process. We may assume, therefore, that if an accused enters a plea agreement and is represented by counsel, then he is aware of the possible range of sentences. Unless there is some indication on the record that the accused does ...