submitted: April 16, 1980.
COMMONWEALTH OF PENNSYLVANIA,
WILLIAM KELLY MCGARRY, APPELLANT
No. 638 April Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Clearfield County, at No. 79-149-CRA of June 13, 1979. Criminal Division
Alan Ellis, State College, for appellant.
Kim C. Kesner, Assistant District Attorney, Clearfield, for Commonwealth, appellee.
Spaeth, Wickersham and Lipez, JJ.
[ 280 Pa. Super. Page 528]
This appeal raises the issue of ineffectiveness of defense counsel at guilty plea proceedings.
On March 5, 1979, appellant was arrested on charges of possession of amphetamines and marijuana and possession of marijuana with the intent to deliver.*fn1 On June 13, 1979, appellant entered a guilty plea to the latter charge, and was sentenced to imprisonment of two to five years, less one day. Appellant then filed a petition for reconsideration of sentence. Although the lower court issued a Rule to Show Cause as to why the court should not reconsider the sentence, no action appears to have been taken on that Rule. On July 11, 1979, appellant filed a Notice of Appeal, alleging that the sentence was excessive. In September 1979 the public defender representing appellant petitioned for leave to withdraw as counsel. This petition was granted on October 1, 1979. In the meantime, on September 14, 1979, another attorney filed an entry of appearance on appellant's behalf, and petitioned for an extension of time in which to file a brief. On January 14, 1980, however, this attorney
[ 280 Pa. Super. Page 529]
petitioned for leave to withdraw as counsel. This petition was granted on March 17, 1980. Appellant now files a pro se brief.
Appellant argues that he was denied effective assistance of counsel by the public defender who represented him at his guilty plea hearing. In particular, appellant alleges that the defender: 1) failed to discuss with him potential defenses before advising him to plead guilty; 2) failed to adequately explain to him the charges to which he was about to plead, or to advise him that by pleading, he would waive his 5th Amendment rights; 3) threatened and misled him into believing that he would receive a short prison term with work release by pleading guilty, and made him believe that he had made a plea bargain to this effect; 4) failed to advise him that if he wished to challenge the sentences, either because the lower court failed to comply with the alleged plea bargain, or on other grounds, he would have to file a petition to withdraw his plea.*fn2
In Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979) (footnotes omitted), our Supreme Court summarized
[ 280 Pa. Super. Page 530]
the guidelines in cases involving ineffective assistance of counsel:
[ 280 Pa. Super. Page 531]
It is by now axiomatic that the test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In making this assessment we are not to employ a hindsight evaluation to determine whether other alternatives may have been more reasonable. Washington v. Maroney, supra, but whether there was a reasonable basis for the course of action actually selected. Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. O'Neal Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979); Commonwealth v. Treftz, 485 Pa. 297, 401 A.2d 1325 (1979); Commonwealth v. Williams, 485 Pa. 137, 401 A.2d 331 (1979); Commonwealth v. Tome, 484 Pa. 261, 398 A.2d 1369, 1371-72 (1979); Commonwealth v. Betrand, 484 Pa. 511, 399 A.2d 682 (1979); Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979); Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979); Commonwealth v. Yocham, 483 Pa. 478, 397 A.2d 766 (1979); Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Commonwealth v. Coleman, 482 Pa. 581, 394 A.2d 474 (1978); Commonwealth v. Sisco, 482 Pa. 459, 393 A.2d 1197 (1978). If a reasonable basis for counsel's trial strategy decision exists, that decision is imputed to the client. Commonwealth v. Page 531} Sullivan, 450 Pa. 273, 299 A.2d 608, cert. denied, 412 U.S. 923, 93 S.Ct. 2745, 37 L.Ed.2d 150 (1973). Moreover, the fact that an ineffective assistance of counsel claim is entertained in a direct appeal, rather than in a collateral attack upon a judgment of sentence, does not relieve the party asserting the claim of providing a record which will support the contention.
486 Pa. at 107-108, 404 A.2d at 380 (footnotes omitted).
In the present case, such a record has not been provided to us. When it is impossible to determine from the record whether or not the actions of defense counsel had a rational basis, an appellate court will remand for an evidentiary hearing to establish counsel's reasons for his course of action. Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth v. Jackson, 267 Pa. Super. 63, 405 A.2d 1304 (1979); Commonwealth v. Payton, 253 Pa. Super. 422, 385 A.2d 410 (1978). Therefore, we shall remand this case to the lower court for an evidentiary hearing on the alleged incompetency of counsel. After the lower court has conducted the hearing and ruled on the issue of the public defender's alleged ineffectiveness, either side may take a new appeal.