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.
[ 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 Appellant admitted to the violation, his probation was revoked and he was sentenced to 11 1/2 to 23 months incarceration.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 ...