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COMMONWEALTH PENNSYLVANIA v. DALE RAYMOND WHITE (04/03/80)

filed: April 3, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
DALE RAYMOND WHITE, JR., APPELLANT



No. 1419 October Term 1979, Appeal from the Order of the Court of Common Pleas of Cumberland County at Nos. 398 and 483 criminal 1978 and No. 623 Criminal 1976.

COUNSEL

C. Roy Weidner, Jr., Lemoyne, for appellant.

J. Michael Eakin, Assistant District Attorney, Carlisle, for Commonwealth, appellee.

Brosky, Wickersham and Eagen, JJ.*fn* Wickersham, J., files a dissenting opinion.

Author: Per Curiam

[ 277 Pa. Super. Page 110]

Appellant, Dale Ray White, Jr., appeals from the dismissal of a post-conviction petition filed pursuant to the Post Conviction Hearing Act [hereinafter: PCHA], Act of January 25, 1966, P.L. (1965) 1580, §§ 1 et seq., 19 P.S. §§ 1180-1 et seq. (Supp.1979-80). White contends that he should be permitted to file a petition to withdraw guilty pleas nunc pro tunc because he was never properly advised of his right to withdraw guilty pleas by the sentencing court or by his court-appointed trial counsel.*fn1 We agree and remand to

[ 277 Pa. Super. Page 111]

    permit the filing of a petition to withdraw guilty pleas nunc pro tunc.

The record reveals the following facts:

On February 16, 1977, White entered a counseled guilty plea to the charge of unauthorized use of a motor vehicle. On May 16, 1978, while still unsentenced on the previous plea, White entered counseled guilty pleas to charges of attempted robbery and escape. Judgments of sentence were imposed on all three charges on May 19, 1978. No direct appeal was taken.

On February 7, 1979, White filed a pro se post-conviction petition under the PCHA. Counsel was appointed, and an amended post-conviction petition was filed on April 3, 1979.*fn2

An evidentiary hearing was held on May 4, 1979. The Commonwealth objected to pursuing the issues raised in the amended post-conviction petition because White had failed to petition for the withdrawal of his guilty pleas and to directly appeal. The PCHA court thereafter held, inter alia, that White knowingly, intelligently and voluntarily waived his right to petition to withdraw his guilty pleas.

The PCHA court premised its holding on the colloquy at sentencing between the court and White. After imposing sentence and announcing his reasons therefor, the sentencing judge advised White of his right to ...


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