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COMMONWEALTH PENNSYLVANIA v. JOSEPH WILLIAM WENTZ (12/28/78)

decided: December 28, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JOSEPH WILLIAM WENTZ, APPELLANT



No. 263 March Term, 1977, Appeal from the Order of the Court of Common Pleas of Dauphin County, Pennsylvania, Criminal Division dated November 19, 1976 Denying the Post Conviction Hearing Act Petition to Nos. 590, 591, 663, 758 of 1974.

COUNSEL

Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.

Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case. Spaeth, Judge, dissenting.

Author: Cercone

[ 262 Pa. Super. Page 67]

Appellant was convicted of the offense of the sale of phenobarbital tablets by a jury in Dauphin County. The day after the jury returned its verdict, appellant entered a plea of guilty on four other charges. The plea was accepted and appellant was sentenced. Two years later, appellant filed a petition pro se under the Post Conviction Hearing Act.*fn1 The petition alleged that his guilty plea was involuntarily induced and requested a new trial and the appointment of counsel. The lower court appointed counsel but dismissed appellant's petition solely on the basis of the Commonwealth's answer to it. From this dismissal appellant appeals.

The substantive argument in the briefs before us deals with the guilty plea colloquy and the court's acceptance of the plea. However, we feel both briefs omitted discussion of the important issue of waiver. Appellant's PCHA petition merely states that "no direct appeal was

[ 262 Pa. Super. Page 68]

    taken." It does not allege that the right to a direct appeal was ever denied or obstructed in any manner. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Commonwealth v. Norman, 447 Pa. 217, 285 A.2d 523 (1971). This omission precludes our review of any issue that could have been dealt with on direct appeal since the language of the PCHA reads:

"(b) For the purposes of this Act, an issue is waived if:

(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised . . . on appeal . . ." 19 P.S. ยง 1180-4.

Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974).

The colloquy prior to acceptance of the guilty plea and sentencing on the record before us clearly informs the appellant of his right to take an appeal from the acceptance of the guilty plea and the limited grounds on which he could base such an appeal. Appellant was represented by counsel at the colloquy and there is no indication on the record that he was displeased with his trial counsel nor is there any allegation of ineffectiveness raised on this appeal which might have discouraged him from taking a direct appeal. Nor is there any allegation that the PCHA petition was in effect "uncounselled" despite the appointment of counsel. See Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975); Commonwealth v. Scott, 469 Pa. 381, 366 A.2d 225 (1976). From the language of the ...


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