No. 135 April Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Indiana County, Pennsylvania at Nos. 67, 68, 69 70, 71, 72, 73, 74, dated August 18, 1977, Criminal Division
Donald R. Marsh, Indiana, for appellant.
Walter S. Vuckovich, District Attorney, Indiana, for Commonwealth, appellee.
Hester, J., files a dissenting statement, in which Van der Voort, J., joins. Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 44]
On direct appeal, appellant is challenging the voluntariness of his guilty plea without having first filed a petition with the lower court to withdraw the plea as required by Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975). On the record, at time of sentencing, the court informed the appellant that he had a right to file a motion to withdraw his plea within thirty days, and a right to appeal a denial thereof. However, the record is devoid of warnings to appellant of the consequences on appeal of his failure to file a petition to withdraw his guilty plea prior to challenging its validity. Under Commonwealth v. Johnson, 258 Pa. Super. 214, 392 A.2d 760 (1978), there must be affirmative proof on the record that "appellant had been apprised by the lower court or his counsel of the right to petition to withdraw his guilty plea, of the right to the assistance of counsel in filing such a petition, and of the consequences of not filing such a petition" before there can be a finding of waiver.
The judgment of sentence is, therefore, vacated, and the case remanded for the filing of a petition nunc pro tunc as mandated by Commonwealth v. Johnson.
HESTER, Judge, dissenting.
I dissent. I would affirm the action of the court below.