No. 913 October Term, 1977, Appeal from the Order of the Court of Common Pleas of Schuylkill County, dated December 28, 1976., Criminal, Nos. 1/4 January Term, 1976.
William E. Baldwin, Pottsville, for appellant.
Richard B. Russell, District Attorney, Pottsville, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 123]
Appellant has taken this appeal from the lower court's order of December 28, 1976 denying his petition for relief under the Post Conviction Hearing Act.*fn1 Appellant had a hearing at which he was represented by counsel. He contends, inter alia, that his pleas of guilty to three counts of burglary and one count of receiving stolen property were involuntary because the judge presiding at the guilty plea hearing failed to include in the colloquy an explanation of the elements of the crimes with which he was charged. We agree for the reasons stated below and, therefore, reverse and remand for trial.
On December 30, 1975 the Court of Common Pleas of Schuylkill County accepted appellant's pleas of guilty to the four charges. Appellant was sentenced on June 8, 1976, but rather than taking a direct appeal or filing a petition to withdraw, he filed a PCHA petition on July 13, 1976 challenging the voluntariness of his guilty pleas;*fn2 the petition alleged that the colloquy was defective, that the pleas were motivated by fear that a constitutionally infirm confession would be used at trial, and that trial counsel was ineffective in allowing appellant to enter the pleas. We need only address the defective colloquy issue since appellant is entitled to have the guilty pleas vacated on that basis alone.
[ 258 Pa. Super. Page 124]
We must first determine whether appellant's failure to file a petition to withdraw the pleas or take a direct appeal in order to raise the guilty plea issue constitutes waiver. If an issue is not raised on direct appeal, it is presumptively treated as waived unless the petitioner can show that extraordinary circumstances justified his failure to raise it previously.*fn3 Commonwealth v. Valezquez, 244 Pa. Super. 327, 330, 368 A.2d 745, 746 (1976). See 19 P.S. §§ 1180-3(d) and 1180-4(b). See also Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976). Ineffectiveness of counsel resulting in a denial of appellant's appeal rights is such an extraordinary circumstance.*fn4 Commonwealth v. Valezquez, 244 Pa. Super. 330, 368 A.2d at 746; Commonwealth v. Green, 234 Pa. Super. 236, 338 A.2d 607 (1975). Appellant's trial counsel failed to file either a petition to withdraw the guilty plea as required by Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975), or a direct appeal from the judgments of sentence*fn5 -- this despite the fact that, as we conclude below, the guilty plea colloquy in the instant case was patently defective. Appellant further alleges in his brief that his trial counsel failed even to discuss with him the possibility of an appeal or inform him of the need to file a
[ 258 Pa. Super. Page 125]
petition to withdraw. Appellant's brief at 20. See Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975).*fn6
If, as we believe, appellant's contention that his guilty pleas were involuntary would have required a reversal if raised on direct appeal, counsel's failure to file, or even consider filing, a direct appeal in order to raise this claim constitutes ineffective assistance of counsel.*fn7 Commonwealth v. Danzy, 234 Pa. Super. 633, 636, 340 A.2d 494, 496 (1975). We, therefore, conclude that trial counsel's ineffectiveness constituted an extraordinary circumstance excusing appellant's failure to petition to withdraw the pleas and his failure to take a direct appeal. See Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976).
Turning then to the merits of appellant's contentions, we find that the lower court failed to comply with the requirements of Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1973), and its progeny and with the dictates of Pa.R.Crim.P. 319(a). The on-the-record colloquy does not adequately explain the elements of the crimes with which appellant was charged -- burglary and receiving stolen property. "To satisfy the requirements of Pa.R.Crim.P. 319(a) and the Ingram line of cases, the trial court must outline to the defendant in understandable terms of the nature of the charges to which a ...