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COMMONWEALTH PENNSYLVANIA v. RICHARD HOLCOMB (11/16/79)

SUPERIOR COURT OF PENNSYLVANIA


November 16, 1979

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
RICHARD HOLCOMB, APPELLANT

No. 2407 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Delaware County, Criminal Division, Nos. 207 & 211 December Sessions, 1972

Before Price, Dowling and Gates, JJ. Gates, J., files a concurring opinion.

Per Curiam:

Order affirmed.

GATES, J., files a concurring opinion.

GATES, J.

I concur in the results reached by the majority. However, in Commonwealth v. Hankins, Judge Price, writing for a majority of the court stated:

"When a petitioner does not allege that he was denied his right to a direct appeal, a challenge to a guilty plea as not knowingly and intelligently entered is waived under the Post Conviction Hearing Act. Commonwealth v. Nero, 250 Pa. Super. 17, 378 A.2d 430 (1977)." Pa. Super. , 396 A.2d 389 (1978).

See also Commonwealth v. Wentz, Pa. Super. , 396 A.2d 647 (1978).

Here appellant does not argue that trial counsel was ineffective but only that the guilty plea colloquy was inadequate. Therefore I conclude that the issue has been waived.

My sole disagreement with the majority is that we did not, in appellant's prior appeal [ Commonwealth v. Holcomb, 227 Pa. Super. 340, 22 A.2d 726 (1974).), decide the issue before us today. In Holcomb we merely held that the trial court did not err, under the circumstances, in refusing to allow appellant to withdraw his guilty plea.

19791116

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