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decided: December 29, 1978.


No. 1841 October Term, 1977, Appeal from the Order denying the Post Conviction Hearing Act relief by the Honorable Judge Joseph F. McCloskey of the Schuylkill County Court of Common Pleas, Criminal Division at No. 96 January Term, 1975.


Jeffrey P. Bowe, Assistant Public Defender, Pottsville, for appellant.

Richard B. Russell, District Attorney, Pottsville, for Commonwealth, appellee.

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

Author: Cercone

[ 262 Pa. Super. Page 179]

The instant appeal arises from the denial of appellant's petition under the Post Conviction Hearing Act, 19 P.S. § 1180-1 et seq. (Supp.1978), following a hearing thereon. The gist of this appeal is that appellant, who pleaded guilty to escape and various other charges on January 12, 1976, did not understand and concur in the plea agreement which was

[ 262 Pa. Super. Page 180]

    the basis for his guilty plea, and that the transcript of the colloquy conducted at that time does not rebut that contention. Appellant further contends that this issue has not been finally litigated or waived by his failure to take a direct appeal following the imposition of sentence, because he was not informed of his obligation to perfect an appeal within thirty days of sentencing and of his right to the assistance of counsel in prosecuting that appeal. Post Conviction Hearing Act, 19 P.S. § 1180-4 (Supp.1978). We agree with appellant's contentions, will reverse the order of the court below denying his petition, vacate the judgment of sentence, and remand for a new trial. The relevant facts are as follows:

On May 22, 1974 appellant was convicted of inciting to riot for which he subsequently received a sentence of one to three years in prison. In November of 1974 appellant again appeared in court on charges of assault and resisting arrest. When a verdict of guilty was returned on November 8, 1974, appellant allegedly bolted the custody of the sheriff. As a consequence, while appellant remained a fugitive, additional charges including the aforementioned charge of escape were filed against him. Approximately one year later, having discussed his situation with counsel, appellant surrendered to the custody of the Schuylkill County authorities. Thereafter, appellant's counsel and the district attorney's office engaged in the negotiations which led to the guilty plea herein contested.

The principal bone of contention in this case is appellant's alleged misapprehension of the plea agreement in that he thought he was to receive sentences on escape and the other charges concurrent with those sentences he had previously received. The district attorney's office argues that this claim is without merit because the terms of the plea agreement were announced in open court and in appellant's presence at the conclusion of the guilty plea waiver colloquy, and specifically provided that a one-to-two year sentence for escape was to be consecutive to sentences previously imposed.*fn1

[ 262 Pa. Super. Page 181]

Furthermore, the sentence, as the court imposed it, reiterated this facet of the agreement. Appellant, on the other hand, maintained that he did not then understand what consecutive and concurrent meant and, furthermore, that he has a substantial hearing defect which impaired his ability to hear and fully understand the proceedings. In any event, appellant contends, it is the duty of the court receiving the plea to conduct an inquiry of the defendant to ascertain that he understands and concurs in the plea agreement, and that the court did not do so in the instant case. We are constrained to agree.

First, we cannot hold that appellant waived his right to challenge the validity of his guilty plea by failing to file a petition to withdraw the plea or challenging it on direct appeal. Although the court informed appellant that his plea of guilty limited the issues cognizable on appeal to the voluntariness of the plea, the legality of the sentence, and the jurisdiction of the court, there was no mention of the time limit for taking an appeal nor did the court apprise appellant of his right to counsel on appeal and of the consequences of his failure to take a direct appeal immediately. Under these circumstances we cannot presume a valid waiver of appellant's right to appeal. See generally Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1967). Furthermore, because appellant's private counsel was admittedly in Europe during the period when filing an appeal from the judgment of sentence was running, so that appellant's efforts, as well as his wife's, to discuss an appeal with counsel were unavailing, for all practical intents and purposes appellant's failure to take an appeal was uncounselled -- another circumstance barring our presumption of a valid waiver of appellate rights. See ...

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