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COMMONWEALTH PENNSYLVANIA v. THEODORE DOWLING (11/18/78)

decided: November 18, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
THEODORE DOWLING, APPELLANT



No. 176, January Term, 1976, Appeal from the Judgment of Sentence of the Philadelphia Court of Common Pleas on Bill Nos. 2141 and 2142 of March Term, 1975

COUNSEL

Richard D. Atkins, Philadelphia, for appellant.

Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Dep. Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., James Garrett, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Nix, J., files a dissenting opinion in which Eagen, C. J., joins.

Author: Pomeroy

[ 482 Pa. Page 609]

OPINION

Appellant, Theodore Dowling, was arrested on February 24, 1975 and charged with criminal homicide and conspiracy in the beating death of one Virgil Free. Appellant retained counsel and, on August 22, 1975, entered a plea of guilty on both counts in return for the Commonwealth's certification that the killing did not rise above murder of the third degree. Following a colloquy conducted by the trial judge, the plea was accepted. A degree of guilt hearing resulted in a finding that the killing was in fact murder of the third degree. Although the district attorney recommended that the sentence not exceed a term of imprisonment of five to fifteen years, the trial court imposed concurrent prison sentences of three to twenty years on the murder charge and three to ten years on the conspiracy count. This appeal followed.*fn1 Dowling points to several imperfections in the plea colloquy*fn2 which, he argues, render the plea invalid. We hold that these assignments of error have been waived; the judgments of sentence will be affirmed.

Our cases have iterated and reiterated that the proper procedure by which to attack a guilty plea is to file in the trial court which accepted the plea a petition to withdraw it. See, e. g., Commonwealth v. Hunter, 468 Pa. 7, 359 A.2d 785

[ 482 Pa. Page 610]

(1976); Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975); Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975). See also Commonwealth v. Beatty, 474 Pa. 104, 376 A.2d 994 (1977); Commonwealth v. Rodgers, 465 Pa. 379, 384, 350 A.2d 815 (1976) (concurring opinion of Pomeroy, J. joined by Manderino, J.); ABA Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty, ยง 2.1 (Approved Draft, 1968).*fn3 It is true that at times in the past, this Court has considered challenges to the validity of a guilty plea despite the absence of any attempt to obtain relief in the trial court. See, e. g., Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976); Commonwealth v. Ramos, 468 Pa. 404, 364 A.2d 257 (1976); Commonwealth v. Hunter, supra; Commonwealth v. Schork, 467 Pa. 248, 356 A.2d 355 (1976); Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976). Those cases, however, were in a period preceding our decision in Commonwealth v. Lee, supra, when there was some confusion as to the proper forum to entertain such a claim. See Commonwealth v. Beatty, supra, 474 Pa. at 111, 376 A.2d 994 (concurring opinion of Roberts, J.); Commonwealth v. Rodgers, supra, 465 Pa. at 384, 350 A.2d 815 (concurring opinion of Pomeroy, J. joined by Manderino, J.); Commonwealth v. Lee, supra. In those cases, moreover, the asserted errors were capable of resolution on the basis of the record on appeal. See, e. g., Commonwealth v. Hunter, Page 611} supra; Commonwealth v. Rodgers, supra (concurring opinion of Pomeroy, J. joined by Manderino, J.); Commonwealth v. Lee, supra. Thus those decisions could be justified in terms of judicial economy and fairness despite the procedural irregularities. The decision in Commonwealth v. Lee, however, removed any doubt that the trial court was the proper tribunal, in the first instance, to resolve allegations of error concerning the validity of the guilty plea and that such matters should not be raised for the first time on appeal.

In the case at bar, Dowling's plea was entered five months subsequent to the date of the Lee decision and the appeal was filed some nine months after that decision. Appellant was therefore on notice that allegations concerning deficiencies in the plea procedure would not be considered if raised for the first time on appeal. See Commonwealth v. Beatty, supra.*fn4

Judgments of sentence ...


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