No. 2229 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section Phila. County at No. 1778 December Term, 1972.
Burton A. Rose, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Johnson and Wieand, JJ.
[ 290 Pa. Super. Page 12]
This is an appeal from an order denying relief under the Post Conviction Hearing Act.*fn1 The issue is whether appellant should be granted a new trial because the guilty plea colloquy was defective. The plea was entered as the result of a plea bargain. The record shows that had counsel informed appellant that the colloquy was defective, appellant would not have withdrawn his plea and gone to trial, but would have accepted the bargain. In these circumstances, we affirm.
On December 18, 1972, appellant was arrested and charged with larceny, receiving stolen property, possession of burglary tools and conspiracy. On March 14, 1974, pursuant to a plea bargain, appellant pleaded guilty to the charge of larceny and the lower court sentenced him to three years probation. Appellant took no appeal from the judgment of sentence.
On May 20, 1976 appellant was found to be in violation of his probation and was resentenced to a term of eleven and one-half months to twenty-three months imprisonment, to be served consecutively to any other sentence of confinement he was then serving. On June 2, 1978, appellant filed, pro se, a petition under the Post Conviction Hearing Act and requested the lower court to appoint counsel to represent him. On September 18, 1978, court-appointed counsel filed an amended PCHA petition, alleging that on March 14, 1974, appellant did not waive his right to a jury trial voluntarily
[ 290 Pa. Super. Page 13]
and intelligently, that the guilty plea colloquy was defective in a number of respects, and that his attorney was ineffective in not drawing these defects to his attention and in not advising him of his right to withdraw his plea or challenge it on direct appeal.
On October 2, 1979, the lower court held an evidentiary hearing on these allegations, and on September 24, 1980, filed an opinion and order denying appellant's petition. It is from this order that appellant appeals.
The Commonwealth does not dispute appellant's contention that the guilty plea colloquy was defective; the colloquy did not explain the elements of the crime of larceny nor the permissible range of sentences for that offense. See e. g., Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976); Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974).
Appellant's former counsel did not testify at the evidentiary hearing on appellant's PCHA petition; the only witness was appellant himself, and he did not testify in any detail about counsel's advice concerning the plea bargain. However, as the lower court found, appellant testified "that even if counsel had advised him of the defect in ...