No. 184 March Term 1978, Appeal from the Order of the Court of Common Pleas of Dauphin County denying Post-Conviction Hearing Act Relief at Nos. 1164, 1165 and 1645A Criminal Division, 1977.
Bruce D. Foreman, Harrisburg, for appellant.
Richard A. Lewis, Chief Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Spaeth, Hester and Montgomery, JJ. Hester, J., files a dissenting statement.
[ 267 Pa. Super. Page 362]
This is an appeal from an order denying relief under the Post Conviction Hearing Act.*fn1
On March 14, 1978, appellant pleaded guilty to charges of indecent assault, rape, and involuntary deviate sexual intercourse. On May 8, 1978, he was given concurrent sentences of one to two years for indecent assault and eight to twenty years for rape and involuntary deviate sexual intercourse. At the time that he entered his guilty pleas and at sentencing appellant was represented by private counsel. Appellant did not file a petition to withdraw his guilty pleas, and he did not appeal his sentences.
On June 6, 1978, appellant filed a pro se PCHA petition, alleging that his guilty plea counsel had been ineffective and incompetent in that he had lied to appellant and unlawfully induced him to plead guilty. The lower court appointed counsel from the Dauphin County Public Defender's Office to represent appellant on his PCHA petition. On June 7 counsel filed a petition for reconsideration of appellant's sentences. This petition was denied on June 12. On June 29 counsel filed an amended PCHA petition, alleging that appellant's guilty plea counsel had been ineffective in that he had misled appellant into pleading guilty by assuring him that he would receive the same sentence from the Dauphin County Court as he had received from the Cumberland County Court on similar charges -- five to ten years. The petition further alleged that appellant's guilty plea counsel had been incompetent in failing to exercise his rights to discovery under Rule 305 of the Pennsylvania Rules of Criminal Procedure and that had he done so certain pre-trial motions could have been filed. The petition requested that appellant be permitted to withdraw his guilty pleas. On July 24 the lower court denied this petition without a hearing.
No appeal was taken from this denial. Instead, on August 14, 1978, appellant filed a second, pro se, PCHA petition,
[ 267 Pa. Super. Page 363]
alleging that his PCHA counsel had been incompetent and ineffective. One allegation was that there existed a conflict of interest between the appellant and the Public Defender's Office because appellant had been a suspect in an incident involving the Chief Public Defender's Secretary and the Defender's Office had conducted an investigation of appellant. Another allegation was that PCHA counsel had never consulted appellant in preparing the amended PCHA petition and had therefore failed to include appellant's allegations that guilty plea counsel had told several lies to appellant to induce the pleas*fn2 and had failed to move to suppress certain evidence. On August 15 the lower court denied this petition, without appointing counsel and without conducting a hearing. On September 14 appellant filed the present appeal alleging error in the lower court's dismissal of the second PCHA petition. New counsel was appointed to represent appellant on this appeal.
A failure to file a petition to withdraw a guilty plea or to take an appeal constitutes a waiver of any defects in the guilty pleas unless some extraordinary circumstances are shown. See Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978); Commonwealth v. Strader, 262 Pa. Super. 166, 396 A.2d 697 (1978); Commonwealth v. Sisak, 249 Pa. Super. 159, 375 A.2d 808 (1977). Here, appellant alleged in his first PCHA petition that his guilty plea counsel was ineffective. Since ineffective counsel represents an extraordinary circumstance, appellant's failure to file a petition to withdraw his guilty pleas or to take an appeal did not have the effect of ...