Nos. 420, 441 January Term, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal, of Philadelphia, at Nos. 1874, 1875 and 1876 June Sessions, 1975
James Gardner Colins, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Neil Kitrosser, Asst. Dist. Atty., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Nix, J., files a concurring and dissenting opinion.
Appellant, Wayne Ford, a/k/a Levan Spann, pleaded guilty to murder of the third degree in the Court of Common Pleas of Philadelphia on December 4, 1975. He was
sentenced to eight to twenty years in prison. He appeals the judgment of sentence on the basis that the guilty plea was invalid.
Appellant contends that he pleaded guilty without being adequately informed of his rights in the colloquy. He did not petition the trial court for withdrawal of his plea, which was not in accordance with proper procedure. If the validity of a guilty plea is at issue, a written motion for withdrawal must be filed in the trial court. The matter may not be raised for the first time before us. We noted the requirement in Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975). In Lee, we considered a challenge to a guilty plea that was not raised in the trial court because we found that the law had not been clear. In Commonwealth v. Dowling, 482 Pa. 608, 394 A.2d 488 (1978), we held that the law was clear after Lee. Dowling involved a guilty plea entered five months after Lee was decided. We held that a challenge to a guilty plea was waived for failure to raise it in the trial court. Lee was decided on March 18, 1975, approximately eight months before the plea in the instant case. Lee and Dowling are controlling and require a finding of waiver.
Appellant, assisted by new counsel, makes several arguments that trial counsel was ineffective because of the lack of consultation between himself and counsel. Appellant alleges five instances of alleged neglect which mandate a finding of ineffective assistance of counsel. Appellant claims:
1. Counsel was ineffective because he consulted with appellant only on the morning of the guilty plea.
2. Counsel was ineffective in not adequately explaining to appellant his right to attack the admissibility of an ...