No. 320 October Term, 1978, Appeal from the Order in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, No. 2236 October Session, 1973.
Martin J. Kilstein, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., files a dissenting statement. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 267 Pa. Super. Page 120]
On February 1, 1974, appellant entered a guilty plea on a charge of attempted theft,*fn1 and he was sentenced to a term of imprisonment of from time-in to twenty-three months.*fn2 The imposition of that sentence was, in effect, a courtroom parole, and appellant was released from custody. No direct appeal was taken from the judgment of sentence.
While on parole, appellant was arrested on January 25, 1975, and charged with robbery,*fn3 burglary,*fn4 and possession of an instrument of crime.*fn5 On June 23, 1975, he pleaded guilty to robbery and was sentenced to a term of imprisonment of from one and one-half to three years.*fn6 As a result of this conviction, a hearing was held on July 16, 1975, at which time parole was revoked on the February 1, 1974 conviction, and appellant was ordered to serve the balance of the sentence that was imposed on February 1, 1974.
On August 19, 1976, appellant filed a pro se Post Conviction Hearing Act*fn7 (PCHA) petition. Counsel was subsequently appointed to assist appellant in preparing an amended petition. An amended PCHA petition was filed on May 5, 1977, alleging, inter alia, that appellant was denied effective assistance of counsel and that his guilty plea was unlawfully induced. At the hearing on the petition, appellant argued that trial counsel was ineffective as to his
[ 267 Pa. Super. Page 121]
"methodology" of presenting the guilty plea to the court. Relief on appellant's petition was denied by the lower court on October 18, 1977, and it is from this order that appellant appeals.
On appeal, appellant contends that he was denied effective assistance of counsel at the time of his plea, and that his plea was improperly accepted by the court below because it was obtained absent an on-the-record colloquy setting forth: 1) the nature of the charges against appellant; 2) a factual basis for the guilty plea; and 3) appellant's presumption of innocence.*fn8
To obtain relief under the Act, a petitioner must prove that any alleged error resulting in conviction and sentence has not been waived. 19 P.S. § 1180-3(d). A petitioner has waived an issue if he "knowingly and understandingly" failed to raise on direct appeal an issue that could have been raised then. 19 P.S. § 1180-4(b)(1). Failure to raise an issue gives rise to a rebuttable presumption of a "knowing and understanding" failure. 19 P.S. § 1180-4(c). There is no waiver, however, if a petitioner proves the existence of "extraordinary circumstances" justifying failure to raise the issue on direct appeal. 19 P.S. § 1180-4(b)(2).
Appellant's argument that trial counsel was ineffective was not waived by failing to take a direct appeal, because appellant was represented by trial counsel during the time within which appeal should have been taken.*fn9 When a defendant fails on direct appeal to raise ineffectiveness of trial counsel, the issue of ineffectiveness is not waived if his trial counsel was or would have been his appellate counsel. Commonwealth v. Dimitris, 484 Pa. ...