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COMMONWEALTH PENNSYLVANIA v. THURMOND R. BERRY (09/07/79)

SUPERIOR COURT OF PENNSYLVANIA


filed: September 7, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
THURMOND R. BERRY, APPELLANT

No. 122 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at No. 1093 October Term, 1976

COUNSEL

Kenneth L. Mirsky, Philadelphia, for appellant.

Val Pleet Wilson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman, JJ.*fn*

Author: O'brien

[ 269 Pa. Super. Page 284]

Appellant, Thurmond Berry, entered a plea of guilty to murder generally, the Commonwealth certifying that the degree of guilt rose no higher than murder of the second degree. Appellant also pled guilty to tampering with a witness, four counts of robbery, criminal conspiracy and various weapons offenses. Following a colloquy, the trial court accepted appellant's guilty pleas and found the degree of guilt in the homicide to be murder of the second degree. Appellant was sentenced to life imprisonment for the murder conviction with a consecutive one to five year prison term for tampering with a witness. Appellant was also sentenced to various probationary terms for the remaining convictions. This appeal followed.

Appellant raises two issues on this appeal, both of which involve the validity of his guilty plea on the homicide.*fn1 He first argues that he did not enter a valid plea of guilty because he was not clearly advised that a conviction for murder of the second degree carried a mandatory sentence of life imprisonment. He also argues that he did not knowingly, intelligently and voluntarily plead guilty where his attorney advised him he might be able to obtain his release from prison in three to three and one-half years.

In Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975), the court made clear that the proper method to challenge the validity of a guilty plea is to file a petition to withdraw the plea.*fn2 Under normal circumstances, appellant's arguments would be considered waived because of his failure to

[ 269 Pa. Super. Page 285]

    file a petition to withdraw the plea. Our review of the record, however, indicates that appellant was neither informed of the necessity to file a petition to withdraw the plea nor of the consequences of a failure to do so. In Commonwealth v. Brandon, 485 Pa. 215, 401 A.2d 735 (1979), the court held that where a defendant is not informed of his rights to file a petition to withdraw a plea, failure to assert these rights cannot amount to an effective waiver. Brandon was thus allowed to file a petition to withdraw his guilty plea nunc pro tunc in the trial court. As in Brandon, we refuse to find an effective waiver of appellant's right to file a petition to withdraw the plea because he was never informed of the necessity of doing so.


*fn* Justice Henry X. O'Brien of the Supreme Court of Pennsylvania, and Judge Robert W. Honeyman of the Court of Common Pleas of Montgomery County, Pennsylvania, are sitting by designation.


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