No. 71 May Term, 1979, Appeal from Order of the Superior Court at No. 472 March Term, 1977, Affirming Order of the Court of Common Pleas, Criminal, of Mifflin County, at Nos. 46-1/2 of 1974, and 2, 21 and 131 of 1975
Jeffrey L. Snook, Lewistown, for appellant.
Richard M. Mohler, Dist. Atty., William A. Helm, Lewistown, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Eagen, C. J., files a concurring and dissenting opinion.
This is an appeal from an Order entered in the Court of Common Pleas of Mifflin County granting in part and denying in part appellant's petition for post-conviction relief. On March 11, 1977, appellant filed a counseled petition pursuant to the provisions of the Post Conviction Hearing Act (PCHA)*fn1 alleging numerous errors relating to four separate criminal convictions. Following a hearing on the petition the PCHA court entered an order correcting illegal sentences imposed on two convictions but otherwise denying all other requested relief. An equally divided Superior Court affirmed. Commonwealth v. Frankhouser, 269 Pa. Super. 319, 409 A.2d 909 (1979). Hence this appeal.
The pertinent facts are as follows. On January 2, 1975, at the conclusion of a bench trial, appellant was convicted of burglary and criminal trespass at No. 46 1/2 of 1974. Post-verdict motions for new trial or in arrest of judgment were filed.
On May 13, 1975, appellant was convicted by a jury of escape at No. 2 of 1975.
On August 11, 1975, appellant pleaded guilty to charges of burglary, theft and receiving stolen property at No. 21 of 1975 and escape at No. 131 of 1975. On that same date, following a colloquy, appellant withdrew the post-verdict motions filed previously at No. 46 1/2 of 1974, and, further, waived the right to file post-verdict motions at all in No. 2 of 1975.
Within this factual matrix, appellant now asserts four instances of alleged trial counsel ineffectiveness.
First appellant argues trial counsel was ineffective in relation to the entry of the guilty plea at No. 21 of 1975. Appellant claims trial counsel "failed to assure a proper colloquy," "failed to assure a sufficient factual basis for the acceptance of a guilty plea," and failed either to inform appellant there were, as a result of the above claims, meritorious issues for appeal or to perfect such an appeal.
Second appellant claims trial counsel was ineffective in failing to assure a proper colloquy in relation to the withdrawal of post-verdict motions filed at No. 46 1/2 of 1974.
Third appellant asserts trial counsel was ineffective in failing to obtain an on-the-record explanation as to why no pre-sentence investigation was conducted and why no reasons were stated on the record for the sentences imposed.
Finally appellant contends trial counsel was ineffective in failing to place on the record the terms of an alleged plea bargain.
We will address these claims seriatim.
We note initially that post conviction relief under the PCHA is not available to a petitioner whose allegations of error have been ...