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COMMONWEALTH PENNSYLVANIA v. ALLEN L. COOPER (03/14/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 14, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
ALLEN L. COOPER, APPELLANT

No. 1504 October Term 1978 Appeal from Judgment of Sentence in the Court of Common Pleas, Trial Division of Philadelphia County, Nos. 1889-97 June Section, 1977.

COUNSEL

John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Spaeth and Lipez, JJ.

Author: Spaeth

[ 276 Pa. Super. Page 87]

This is an appeal from judgment of sentence entered upon a plea of guilty to possession of a prohibited offensive weapon*fn1 and aggravated assault.*fn2

Appellant argues that he should be permitted to petition to withdraw his guilty plea nunc pro tunc because his trial counsel*fn3 was ineffective in not filing a petition to withdraw

[ 276 Pa. Super. Page 88]

    the plea on the ground that the charge of possession of an offensive weapon had been previously quashed.

The proper procedure to challenge a guilty plea is to file with the trial court a petition to withdraw the plea. Commonwealth v. Roberts, 237 Pa. Super. 337, 352 A.2d 140 (1975). Nevertheless, "ineffective assistance of counsel has been held to be an extraordinary circumstance excusing an appellant's failure to follow appropriate procedures in seeking relief for his or her complaints." Commonwealth v. Strader, 262 Pa. Super. 166, 171, 396 A.2d 697, 700 (1978); Commonwealth v. Valesquez, 244 Pa. Super. 327, 330, 368 A.2d 745, 746 (1976). Here, we cannot determine whether counsel was ineffective for failing to file a petition to withdraw the plea because the record does not make clear whether the charge of possession of an offensive weapon had or had not been quashed. On the one hand, the information charging appellant with this offense has a notation indicating that a motion to quash was granted on August 16, 1977; also, there is a docket entry for that date to the effect that the motion to quash had been granted. On the other hand, the notation on the information is not signed by the court, and on September 7, 1977, a further preliminary hearing in the case was held at which the offensive weapon charge was treated as though it were extant.

Given so ambiguous a record, we shall remand so that the lower court, after hearing, if that is necessary, may make findings of fact and file an opinion. If the court finds that the entries on the information and docket are correct and that the offensive weapon charge was in fact quashed, it should allow appellant to file a petition to withdraw his guilty plea nunc pro tunc. If the lower court finds that the entries on the information and docket were entered without the court's authority and in error and that the offensive weapon charge was in fact not quashed, it should enter an order refusing to permit appellant to file a petition to withdraw his guilty plea nunc pro tunc.

[ 276 Pa. Super. Page 89]

Case remanded to the lower court for proceedings consistent with this opinion.*fn4


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