Nos. 354 and 355 April Term, 1979, Appeal from the Orders, dated January 23, 1979, of the Court of Common Pleas, Criminal Division, of Blair County At No. 1175 of 1976.
Richard M. Serbin, Altoona, for appellant.
David P. Andrews, Assistant District Attorney, Hollidaysburg, submitted a brief on behalf of Commonwealth, appellee.
Price, Cavanaugh and Watkins, JJ.
[ 279 Pa. Super. Page 306]
Mr. Baylor appeals two lower court orders which denied his petition to withdraw his guilty plea nunc pro tunc and his petition for relief under the Post Conviction Hearing Act (PCHA).*fn1 He argues that his guilty plea colloquy was defective, that the judge erred in sentencing him without ordering a presentence investigation report, and that after-discovered evidence entitles him to withdraw his guilty plea. We do not reach the merits of these arguments, instead we remand for an evidentiary hearing.
On March 31, 1977, the appellant pled guilty to burglary and forgery and was given consecutive sentences of two and a half to five years' imprisonment for the burglary conviction and one to two years' imprisonment for the forgery conviction. He did not directly appeal these sentences.
On May 5, 1978, more than one year after sentencing, the appellant filed a pro se PCHA petition. Soon thereafter, present counsel was appointed and counsel filed a petition to withdraw the guilty plea nunc pro tunc and a separate amended PCHA petition. The lower court held a hearing on both petitions and denied relief. This appeal followed.
The issue we consider is whether waiver as defined by the PCHA,*fn2 applies to a person who fails to directly appeal his guilty plea and after the time for direct appeal expires either petitions to withdraw his plea or petitions for PCHA relief. We conclude that it does apply to such a situation.
At the outset we note that Pa.R.Crim.P. 321 requires inter alia that a motion challenging the validity of a guilty plea be filed within ten days after sentence is imposed. However, Rule 321 was not effective until September 1, 1977. Therefore, it does not govern the instant case. The determination of the question in the instant case requires the analysis of several cases.
[ 279 Pa. Super. Page 307]
In Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979), as in the instant case, the defendant pled guilty, failed to directly appeal, and after the time for direct appeal expired, he filed a petition to withdraw his plea and a petition under the PCHA. In affirming the lower court's denial of relief, the majority of the Supreme Court*fn3 analyzed the situation solely in terms of PCHA waiver. Id., 486 Pa. at 476-478, 406 A.2d at 734-35. Moreover, the majority held there was waiver even though the guilty plea colloquy was defective because of the lower court judge's failure to adequately explain the elements of the crime in understandable terms. Id.
In Commonwealth v. Thompson, 263 Pa. Super. 323, 397 A.2d 1230 (1979), we quashed an appeal from a denial of a motion to withdraw a guilty plea since the motion was filed after the expiration of the ...