No. 708 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal Division, Nos. 91, 374, 727, 849, 870 January Term, 1975 and Nos. 4053, 4527, 4532 October Term, 1974.
Richard M. Lovenwirth, Pottstown, for appellant.
James A. Cunningham, Assistant District Attorney, Pottstown, for Commonwealth, appellee.
Price, Hester and Hoffman, JJ.
[ 263 Pa. Super. Page 223]
Appellant William F. Maute pled guilty in the Court of Common Pleas of Montgomery County to various charges of burglary, theft, criminal conspiracy and corruption of minors. On August 8, 1975, he was sentenced to a term of one to five years imprisonment, seven years probation, and restitution. No appeal was taken. On October 17, 1977, a pro se petition under the Post Conviction Hearing Act (PCHA)*fn1 was filed alleging, inter alia, the ineffectiveness of counsel and involuntariness of the guilty plea. Counsel was appointed and, following hearings on November 14 and December 5, 1977, relief was denied. This appeal followed.
[ 263 Pa. Super. Page 224]
A PCHA petition is the incorrect procedure by which to challenge the validity of a guilty plea. That issue is more properly presented by a motion filed with the sentencing court requesting leave to withdraw the plea. Commonwealth v. Dowling, 482 Pa. 608, 394 A.2d 488 (1978); Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975). In Lee, the court stated: "[W]here the only challenge to the proceedings in the trial court is directed to the validity of the guilty plea itself, the proper procedure is first to file with that court a petition to withdraw the plea." Id., 460 Pa. at 327, 333 A.2d at 750. See also, Pa.R.Crim.P. 321 (eff. Sept. 1, 1977). Subsequent cases have made it clear, however, that if the challenge to the plea is appended to an additional allegation, such as ineffective counsel, then a PCHA petition is a proper procedure by which to bring the matter before the court. Commonwealth v. Robinson, 253 Pa. Super. 496, fn. 3, 385 A.2d 448, fn. 3 (Pa. S., 1978); Commonwealth v. Herold, 246 Pa. Super. 170, 369 A.2d 866 (1977).*fn2 Since the appellant coupled his attack on the plea
[ 263 Pa. Super. Page 225]
with a contention that his counsel was ineffective, we will consider his arguments. We note additionally that appellant's PCHA counsel is different from his guilty plea counsel, thus properly preserving the issue of the latter's ineffectiveness. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
Where withdrawal of the plea is sought after sentence has been imposed, a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973).
The crux of appellant's argument is that his guilty plea was not knowing and intelligent for two reasons: (1) it was based upon an unconstitutionally obtained confession; and (2) his counsel coerced him into pleading guilty by telling him a plea of not guilty would result in a maximum sentence on each count. We will deal with each prong seriatem.
In order to attack his guilty plea on the grounds it was based on an unlawfully obtained confession, appellant must prove all of the following: (1) the confession was in fact unlawfully obtained; (2) the confession was the prime motivation of the guilty plea; and (3) the guilty plea was entered on the incompetent advice of counsel. Commonwealth v. Williams, 456 Pa. 377, 321 A.2d 608 (1974); Commonwealth v. Butler, 454 Pa. 95, 309 A.2d 720 (1973); Commonwealth v. Marsh, 440 Pa. 590, 271 A.2d 481 (1970); Commonwealth v. Reiland, 241 Pa. Super. 109, 359 A.2d 811 (1976); cf. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 ...