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COMMONWEALTH PENNSYLVANIA v. WILLIE RAY SMITH (04/10/81)

filed: April 10, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIE RAY SMITH, APPELLANT



No. 2072 October Term, 1979, Appeal from Order of the Court of Common Pleas of Lackawanna County, Criminal Division, Nos. 673, 674 A-D, and 1064 A & B of 1977.

COUNSEL

John J. Cerra, Carbondale, for appellant.

Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Hester

[ 286 Pa. Super. Page 132]

This is an appeal from an order of the Court of Common Pleas of Lackawanna County dismissing appellant's petition under the Post Conviction Hearing Act (P.C.H.A.), Act of January 25, 1966, P.L. 1580 (19 P.S. § 1180-1 et seq.).

On June 1, 1977, appellant entered a plea of guilty to charges of robbery, burglary and assault. A sentence of 10-20 years was imposed. No post-trial motions were filed and no direct appeal was taken.

In June 1979, appellant filed a P.C.H.A. petition alleging that his guilty plea was unlawfully induced and that he was not represented by competent counsel. The P.C.H.A. hearing court denied relief stating that the above asserted issues had been waived. This appeal followed.

Appellant asserts that he has not waived the right to attack the validity of his guilty plea where such is grounded on the ineffectiveness of counsel.

Courts have often held that a knowing and understanding failure to take a direct appeal from the judgment of sentence will result in the waiver of all issues which could have been raised thereon, absent extraordinary circumstances. Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980); Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979).

Here trial counsel did not take a direct appeal on behalf of appellant. Because no testimony was taken below, we have

[ 286 Pa. Super. Page 133]

    no idea whether this failure to appeal resulted from a "knowing ...


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