No. 62 March Term, 1979, Appeal from the Order of the Court of Common Pleas of Dauphin County denying Post Conviction Relief at No. 33 C.D. 1977 dated March 14, 1979.
Bruce D. Foreman, Harrisburg, for appellant.
Marion E. MacIntyre, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Montgomery, JJ. Watkins, J., notes dissent.
[ 285 Pa. Super. Page 581]
Appellant and two co-defendants were charged with Robbery and Theft by Unlawful Taking on February 7, 1977. The facts which led to the prosecution in this case are as follows: On December 21, 1976, three armed men wearing ski masks entered Fat's Snack Shop in Harrisburg, Pennsylvania. The attendant, believing the hold-up to be a joke, went up to one man and pulled off his cap mask. He immediately recognized Luis Cortes, appellant's co-defendant. The robbery was completed and the assailants left. Mr. Cortes was later captured and informed the police of the identity of the other men. Appellant was so identified.
An attorney from Dauphin County Public Defender's Office, Larry Stone, was appointed to represent the above individuals. On the date set for trial, appellant and one of the two co-defendants appeared before the Honorable William W. Caldwell with Attorney A. Mark Winter from the aforementioned Public Defender's Office. Both defendants pled guilty with sentencing being deferred pending pre-sentence investigation. Sentencing was held on August 11, 1977 before Judge Caldwell for both defendants. At that time, they were represented by their third attorney from Dauphin County Public Defender's Office, Mr. Larry A. Kalikow. Appellant was sentenced to a term of imprisonment of not less than five (5) nor more than fifteen (15) years imprisonment. Neither a petition to withdraw the plea nor a direct appeal from the sentence was filed by the appellant.
Appellant filed a Post-Conviction Hearing Act (hereinafter PCHA) petition on December 21, 1978, with private counsel appointed one week later. Said counsel filed a supplemental petition which was denied without a hearing by Order dated March 14, 1979. This appeal followed.
In his petition, appellant contends that his guilty plea was induced as a result of the constitutionally improper dual representation of himself and his co-defendant. Furthermore, appellant asserts that he has not waived his right to challenge the validity of his guilty plea because of the
[ 285 Pa. Super. Page 582]
ineffectiveness of trial counsel. Finally appellant urges us to grant him an evidentiary hearing on his petition.
It is undisputed that claims challenging the voluntariness of a guilty plea are to be raised in a petition to withdraw the plea. Commonwealth v. Schwartz, 251 Pa. Super. 36, 379 A.2d 319 (1977), Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975). Since no such petition was filed in this case, we must determine if this issue has been waived for purposes of PCHA relief. According to the PCHA, an issue is waived if the petitioner knowingly and intelligently failed to raise it and is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue. PCHA § 4(b), 19 P.S. § 1180-4(b) (Supp.1979-80). Our courts have consistently recognized ineffective assistance of counsel to constitute extraordinary circumstances ". . . excusing an appellant's failure to follow appropriate procedures in seeking relief for his or her complaints." Commonwealth v. Strader, 262 Pa. Super. 166, 175, 396 A.2d 697, 702 (1978), Commonwealth v. Valezquez, 244 Pa. Super. 327, 330, 368 A.2d 745, 746 (1976).*fn1 In the case at bar, appellant advances an ineffectiveness argument as an explanation for his failure to seek a withdrawal of the plea. Therefore, there is no waiver. See Commonwealth v. Lantzy, 284 Pa. Super. 192, 425 A.2d 768 (1981), Commonwealth v. Strader, supra.
There being no waiver, we must then determine whether the dual representation of appellant and his co-defendant rendered the assistance of counsel constitutionally infirm. The Pennsylvania Supreme Court addressed the issue of dual representation in ...