filed: May 22, 1981.
COMMONWEALTH OF PENNSYLVANIA
STANLEY J. CZAPLA, JR., APPELLANT
No. 2011 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal Division at Nos. 825-76, 3232-77, 3433-77, 3994-77, 3995-77, 3996-77, 3997-77, and 3998-77.
S. Gerald Corso, Ambler, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Spaeth, J, files a dissenting opinion.
Author: Van Der Voort
[ 287 Pa. Super. Page 336]
On June 17, 1976, appellant pleaded guilty to charges of theft and receiving stolen property; he was placed on two years probation. Appellant was arrested again in 1977 and was charged with a number of offenses. A "Gagnon II hearing" (probation revocation hearing) was held on October
[ 287 Pa. Super. Page 3375]
, 1977. Appellant admitted to the violation, his probation was revoked and he was sentenced to 11 1/2 to 23 months incarceration. Subsequently appellant also pleaded guilty on March 6 and 8, 1978 and April 10, 1978*fn1 to numerous counts of burglary and other related charges. On June 23, 1978, after a presentence investigation had been conducted appellant was sentenced to terms of two to ten years on each of six counts of burglary to run concurrently to each other and consecutive to the previously imposed sentence, two concurrent terms of ten years probation on the attempted burglary charges to commence upon his release and sentence was suspended on the three counts of conspiracy and one count of possession of an instrument of crime. Appellant failed to file any direct appeals. He did however file five Post Conviction Hearing Act petitions. The lower court held a hearing on the petitions and found against appellant. Appellant here appeals from the order denying him relief.
Appellant raises three issues:
I. Was the lower court's denial of an appeal nunc pro tunc improper when the probation revocation court failed to advise appellant of his right to appeal;
II. Did the lower court err in denying appellant a right to withdraw his guilty pleas nunc pro tunc when the sentencing court failed to advise him of such rights; and
III. Was appellant denied his right to appeal by prison officials who allegedly obstructed his access to law libraries and legal clinics.
The Commonwealth concedes that the lower court failed on two occasions to adequately advise appellant of his appeal rights. In particular the Gagnon II hearing judge failed to advise the appellant at the time of sentencing of his right to
[ 287 Pa. Super. Page 338]
appeal, as required by Pa.R.Crim.P. Rule 1405(b).*fn2 Appellant also was not informed after the court sentenced him on June 23, 1978 of his right to challenge his guilty pleas pursuant to Rule 1405(c).*fn3
I. The Commonwealth contends that even though appellant was not advised of his right to appeal the probation revocation, he was not prejudiced since the issue was cognizable in the P.C.H.A. proceedings. To place the present discussion in the proper perspective, appellant admitted violating his probation. So while appellant is correct in arguing that a defendant who is not advised of his appellate rights and is effectively deprived of an appeal should be granted an appeal nunc pro tunc;*fn4 the present situation must be resolved in the framework of an appeal from a guilty plea entered at a probation revocation hearing.*fn5 When challenging a guilty plea a defendant may only challenge: the jurisdiction of the court; the lawfulness of
[ 287 Pa. Super. Page 339]
the sentence; the validity of the plea; and the competency of counsel. Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974) and Commonwealth v. Miller, 246 Pa. Super. 392, 371 A.2d 896 (1977). The appeal of a probation revocation is also limited.
"The review in an appeal from judgment of sentence which has been imposed following revocation of probation is 'limited to the validity of the revocation proceedings and the legality of the final judgment of sentence'. [ Commonwealth v. Gilmore, 465 Pa. 202, 205] 348 A.2d  at 427 [(1975)]". Commonwealth v. Sylvanus, 246 Pa. Super. 93, 369 A.2d 826 (1976).
The present case is a hybrid appeal: an appeal from a P.C.H.A. order concerning a Gagnon II hearing wherein appellant admitted violating the terms of his probation. Appellant argues that his admission to the violation was involuntary because his counsel incorrectly informed him that he would receive a sentence of three to six months and not a sentence of eleven months to twenty-three months which was imposed. Appellant in essence is claiming his admission was involuntary because of counsel's ineffectiveness.
To simplify the present situation we will resolve the issue as if it arose from a guilty plea instead of a Gagnon II plea.*fn6 When viewed in this perspective the present situation is analogous to the situation in Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977). In Alston the defendant had pleaded guilty, did not take a direct appeal but later filed a P.C.H.A. petition. There it was claimed that the plea was not knowingly and voluntarily made. Relief was denied by the lower court. On appeal Alston argued that the hearing court should have allowed an appeal nunc pro tunc. The Commonwealth conceded that the defendant was not advised of his right to appeal. The Supreme Court there held that:
[ 287 Pa. Super. Page 340]
"Appellant is not entitled to relief . . . . Because he was convicted . . . after a plea, the only issues he could contest on appeal would be the jurisdiction of the court, the validity of his plea and the lawfulness of his sentence. (Citation deleted). Appellant was given the opportunity to raise these issues in the post conviction proceedings and challenged only the validity of his plea. The same legal standards were applicable to the post-conviction proceeding as would apply on appeal, and the hearing court applied the correct standards. Therefore, failure to allow appeal as though timely filed was not prejudicial." (Citations deleted). Id., 473 Pa. at 47, 373 A.2d 741.
The lower court here allowed appellant full rein to present whatever testimony he wished. He attempted to show counsel was ineffective at the revocation hearing and that the plea was not voluntary. The hearing judge found no merit to appellant's contention. We find that the record of the P.C.H.A. hearing supports the judge's ruling.
"Because those issues are fully cognizable in collateral proceedings, a denial of a defendant's right to appeal is non-prejudicial and standing alone does not afford a basis for relief." (Citations deleted).
Commonwealth v. Ward, 442 Pa. 351, 357, 275 A.2d 92 (1971).*fn7 See also Commonwealth v. Miller, 246 Pa. Super. 392, 371 A.2d 896 (1977).
II. The Commonwealth contends that even though the court failed to advise appellant at the time of sentencing, June 23, 1978, of his right to challenge his guilty plea, the appellant was allowed to question the validity of the plea before the P.C.H.A. court. The prosecution also notes that appellant was advised of his rights to withdraw the plea on March 8, 1978, when he first entered such plea.
[ 287 Pa. Super. Page 341]
Prior cases appear to support appellant's contention that failure to advise him of his right requires the granting of allowance to file a motion nunc pro tunc to withdraw his plea. In Commonwealth v. Beatty, 474 Pa. 104, 376 A.2d 994 (1977) the Supreme Court held that a direct appeal was not the proper method for attacking a guilty plea. The court held:
"It is now settled that the proper procedure for attacking a guilty plea following the entry of judgment of sentence is to file with the trial court which accepted the plea a petition to withdraw the plea." At 474 Pa. 108, 376 A.2d 994.
The court in Commonwealth v. Brandon, 485 Pa. 215, 401 A.2d 735 (1979) found the defendant had not been informed that he had a right to withdraw his plea; the court remanded allowing Brandon to file nunc pro tunc a motion to withdraw his plea.*fn8
Appellant here requests the Brandon remedy of remanding. However, appellant has already had the benefits of a remand would provide. The P.C.H.A. court reviewed appellants guilty plea. Appellant argued that his plea was a result of his counsel's incompetency. Specifically appellant claimed that his lawyer failed to attempt to have evidence suppressed and the case dismissed under Rule 1100, Pa.R.Crim.P. The post conviction court found appellant's contentions were without merit. We agree. To now allow appellant to file a motion nunc pro tunc to withdraw his plea would result in a duplication of the P.C.H.A. hearing. Appellant was allowed to present whatever arguments he wished,*fn9 he was not prejudiced by the court's consideration
[ 287 Pa. Super. Page 342]
of such argument in the form of a P.C.H.A. petition instead of a hearing on a motion to withdraw his plea.
III. As a result of our other holdings in this case, we see no need to delve into appellants claim that prison officials interfered with his ability to file an appeal. Appellant has accomplished by collateral appeal what he claims prison officials prohibited him from doing on a direct appeal.
SPAETH, Judge, dissenting:
This case presents us once again with the issue of the extent of relief a PCHA court may grant once it is determined that a petitioner's rights have been denied. In this case, the Commonwealth concedes, and the majority finds, two distinct denials: 1) appellant was not advised on October 5, 1977, when he was sentenced after the revocation of his probation, of his right to appeal; and 2) appellant was not advised on June 23, 1978, when he was sentenced after his guilty pleas, of his right to file a motion to withdraw the pleas.
In my opinion, when a defendant alleges in a petition filed under the Post Conviction Hearing Act that he has been unlawfully denied the right to direct appeal, guaranteed by the Pennsylvania Constitution, article V, section 9, the PCHA court must decide that issue first. If the court determines that the defendant's right to direct appeal has been denied, it should reinstate the right, so that the defendant may appeal nunc pro tunc, and not decide whether the other claims made in the PCHA petition are valid.
[ 287 Pa. Super. Page 343]
This procedure has been approved in several cases. See, e. g., Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1976); Commonwealth v. Bricker, 458 Pa. 367, 326 A.2d 279 (1974); Commonwealth v. Fareri, 271 Pa. Super. 174, 412 A.2d 632 (1979); Commonwealth v. Drummond, 238 Pa. Super. 311, 357 A.2d 600 (1976). Apart from considerations of precedent, I endorse it because it places the defendant who has been denied his right to appeal in the same position as one who has been allowed to exercise that right. The procedure approved by the majority discriminates against the defendant who has been denied his right to appeal. As petitioner in a PCHA proceeding, the defendant has the burden of proving that counsel was ineffective. As appellant on a direct appeal, the defendant has only the burden of proving that his claims are meritorious and have not been waived.
These considerations lead to the further conclusion that if trial counsel fails to file post-verdict motions as well as an appeal, the PCHA court, instead of reinstating the defendant's right to direct appeal, should direct him to file post-verdict motions nunc pro tunc. Commonwealth v. Johnson, 280 Pa. Super. 309, 421 A.2d 737 (1980), thereby restoring by making fully effective the right to appeal denied by ineffective counsel.
I acknowledge that this court has not been consistent. Several opinions have recommended that if a PCHA court determines that a defendant's right to appeal has been denied, the court should decide whether the claims made in the PCHA petition are valid. See, e. g., Commonwealth v. Harper, 273 Pa. Super. 426, 417 A.2d 722 (1980); Commonwealth v. Miller, 246 Pa. Super. 392, 371 A.2d 896 (1977); Commonwealth v. McLaughlin, 239 Pa. Super. 324, 361 A.2d 706 (1976). I hope that we shall be able to resolve the issue of how the PCHA court should proceed in our forthcoming opinions in two cases recently argued before our court en banc: Commonwealth v. May, (J. 988/80) and Commonwealth v. Miranda, (J. 989/80). Until such time, however, I remain of the opinion I have expressed above.
[ 287 Pa. Super. Page 344]
Since here the record discloses that post-verdict motions were not filed on appellant's behalf, I should not consider whether the other claims made in the PCHA petition are valid but should remand with instructions to allow appellant to file post-verdict motions nunc pro tunc.
As the majority acknowledges, failure to advise a defendant of his right to file a motion to withdraw his guilty plea requires granting permission to file a motion to withdraw nunc pro tunc. Commonwealth v. Brandon, 485 Pa. 215, 401 A.2d 735 (1979); Commonwealth v. Beatty, 474 Pa. 104, 376 A.2d 994 (1977); Commonwealth v. Good, 256 Pa. Super. 522, 389 A.2d 168 (1978). It follows for the reasons as discussed above, that if the PCHA court determines that the defendant was not advised of his right to file a motion to withdraw, it should grant permission to file the motion nunc pro tunc and do no more; it should not go on and determine whether the defendant was denied the right to file a motion to withdraw due to ineffective counsel.
The majority suggests, however, that the failure of the PCHA court to follow the proper procedure is unimportant because the court "allowed appellant full rein to present whatever testimony he wished," making a remand for a hearing on a motion to withdraw the pleas nunc pro tunc a needless duplication. (Maj. op. at 315-316) A review of the notes of testimony at the PCHA hearing suggests the opposite. In particular, appellant argued on PCHA that counsel was ineffective for several reasons, including his failure to move to suppress certain evidence obtained in an unconstitutional search and seizure, and an incriminating statement made by appellant in Graterford prison in the absence of counsel. (N.T. 24-25) It is settled that where it is unclear from the record whether counsel's failure to move to suppress had a reasonable basis, the proper remedy is to remand for an evidentiary hearing on that issue. Commonwealth v. Mosely, 261 Pa. Super. 198, 395 A.2d 1384 (1978). See also Commonwealth v. Morris, 265 Pa. Super. 589, 402 A.2d 702
[ 287 Pa. Super. Page 345]
(1979). In the present case, the record is indeed unclear. The attorney charged with ineffectiveness testified that in his judgment, there were "absolutely no grounds" for a motion to suppress. (N.T. 35) This conclusory statement remains unexplained; there was no evidence as to precisely what the evidence in question was, or why counsel was of the opinion that there were no grounds for a motion to suppress.
The order of the lower court should be reversed and the case remanded for further proceedings consistent with this opinion.