No. 254 March Term 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division of Allegheny County at No. CC 7603598A
Nicholas Radoycis, Jr., McKees Rocks, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ.
On June 30, 1976, the district attorney of Allegheny County by information charged Curtis Brandon, appellant, with murder of the first degree, murder of the third degree, and voluntary manslaughter. Brandon, pursuant to an agreement with the district attorney,*fn1 entered a plea on September 14, 1976, of guilty of murder of the third degree. As a result of the guilty plea, judgment of sentence of not less than ten nor more than twenty years imprisonment was imposed on October 27, 1976.
Brandon filed an appeal from the judgment of sentence in this Court. Thereafter, on July 13, 1977, appellant filed a "Petition to Remand" with the consent of the district attorney. His final request for relief was to "remand this matter to the trial court with instructions to that court to conduct a hearing to determine whether the appellant has waived his right to file a petition to withdraw guilty plea and/or to file post trial motions, and to grant additional relief if appropriate." We subsequently issued the following order on August 5, 1977: "Petition Granted. By the Court."
On October 3, 1977, a counseled evidentiary hearing was held in the trial court pursuant to the order. Subsequently, the court ruled Brandon had waived his right to file a petition to withdraw his guilty plea. For the reasons stated herein, we reverse and remand the matter to the trial court to allow Brandon to file a motion to withdraw his guilty plea nunc pro tunc.
At the time Brandon plead guilty,*fn2 the proper means of challenging the validity of a guilty plea was to file with the trial court which accepted the plea a motion to withdraw the plea. Commonwealth v. Beatty, 474 Pa. 104, 376 A.2d 994 (1977); Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975). The failure to file such a motion precluded a challenge to the adequacy of the plea colloquy on appeal. Commonwealth v. Dowling, 482 Pa. 608, 394 A.2d 488 (1978).*fn3
Based on the testimony of Brandon's trial counsel at the hearing of October 3, 1977, the hearing court found that Brandon did not communicate with his counsel between the date of the guilty plea and the date of sentencing and, at the time of sentencing, did not request permission to withdraw the plea. This, the court concluded, constituted a waiver by Brandon of his right to file a petition to withdraw the guilty plea. We disagree.
First, an examination of the transcript of the plea proceedings discloses Brandon was not informed at that time of his right to file post-verdict motions or a petition to withdraw the guilty plea. Second, there is nothing in the record that even suggests Brandon was informed of these rights at any other time. Thus, it can hardly be said that Brandon was aware of his rights and knowingly failed to assert them. Under ...