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COMMONWEALTH PENNSYLVANIA v. GARY A. PALMER (03/09/79)

decided: March 9, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY A. PALMER, APPELLANT



No. 397 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Armstrong County, Criminal Division, at No. 1976-0315 Criminal, entered October 7, 1977.

COUNSEL

Roger G. Rulong, Jr., Kittanning, for appellant.

Roger T. Mechling, Assistant District Attorney, Kittanning, for Commonwealth, appellee.

Price, Hester and Watkins, JJ.

Author: Hester

[ 264 Pa. Super. Page 167]

This is an appeal from the Order of the Court of Common Pleas of Armstrong County denying Appellant's petition for relief under the Post-Conviction Hearing Act.*fn1

Appellant pleaded guilty to a charge of escape on August 31, 1976. On October 7, 1976 appellant was sentenced to a term of 1 1/2 to 3 years in jail. No direct appeal was taken.

On December 22, 1976, appellant filed a pro se petition for relief under the Post-Conviction Hearing Act. Counsel was appointed and an amended petition was filed. After a hearing, the court on October 7, 1977, dismissed the petition and appellant now brings this appeal.

Appellant asserts that the PCHA Court erred when it refused to allow him to withdraw his plea of guilty where it was shown that the guilty plea was induced by misrepresentations of defense counsel.

Under the Post-Conviction Hearing Act, appellant must show that he did not "knowingly and understandingly" waive any issue that could have been raised on direct appeal (but was not). 19 P.S. ยง 1180-3(d), 1180-4(b)(1), 1180-4(c). However, no waiver will lie where petitioner proves that the failure to raise the issue on direct appeal was justified by "extraordinary circumstances". Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976).

Here no direct appeal was taken. However, we will treat appellant's inartfully drawn issue as one asserting ineffective assistance of counsel. Thus, we hold that the issue presented is not waived since the PCHA hearing was the first time appellant was represented by other than trial counsel. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435

[ 264 Pa. Super. Page 168]

(1975) and as such "ineffective of counsel represents an "extraordinary circumstance" which precludes waiver. Commonwealth v. Ramos, ...


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