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COMMONWEALTH PENNSYLVANIA v. JOSEPH F. WEISS (07/17/81)

filed: July 17, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
JOSEPH F. WEISS, APPELLANT



No. 2636 October Term, 1979, Appeal from an Order of the Court of Common Pleas, Criminal Division, of Berks County, Nos. 77015301, 77096001, 77096101 October Term, 1977.

COUNSEL

Joseph F. Weiss, Graterford, appellant, in pro. per.

George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., files a concurring opinion. Cavanaugh, J., concurs in the result.

Author: Hester

[ 289 Pa. Super. Page 3]

On October 11, 1977, appellant Joseph F. Weiss appeared in the Court of Common Pleas, Berks County, and tendered pleas of guilty to three counts of burglary. Pursuant to the negotiated bargain, he was sentenced to three concurrent prison terms of four to ten years each, to begin at the expiration of a term appellant was then serving. No petition to withdraw the plea was filed, but on January 29, 1979, the instant petition under the Post Conviction Hearing Act*fn1 was filed challenging the plea and alleging ineffective assistance of counsel. Following an evidentiary hearing on July 24, 1979, at which appellant acted as his own counsel, relief was denied. This appeal followed.

[ 289 Pa. Super. Page 4]

Ordinarily a party on appeal who seeks to challenge a guilty plea must first have filed a motion to withdraw the plea in the court where it was entered. Commonwealth v. Dowling, 482 Pa. 608, 394 A.2d 488 (1978); Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Pa.R.Crim.P. 319-321. However, where as here, an appellant attacks a plea of guilty on the basis that trial counsel's ineffectiveness contributed to the plea and where appellant was represented post-trial by the same counsel, we have permitted appellate review of the claim on the merits. Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146, (1980); Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040, (1980); Commonwealth v. Ford, 484 Pa. 163, 398 A.2d 995 (1979); Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979); Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976); Commonwealth v. Miller, 495 Pa. , 433 A.2d 1 (1981).

Appellant's attack upon his plea focuses on several alleged inadequacies in the plea colloquy and counsel's ineffectiveness in failing to correct those shortcomings. Of course, the lower court must engage in a colloquy on the record to ascertain whether a proffered plea of guilty is intelligent and voluntary. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). Inquiry into six separate areas*fn2 is required and failure to inquire into the defendant's understanding of these subjects generally requires reversal. Chumley, supra, 482 Pa. at 634, 394 A.2d 501.

[ 289 Pa. Super. Page 5]

Appellant first contends that an adequate factual basis for his plea was not established. However, the record shows that the court first summarized the averments of the three burglaries at issue, including time and place, and asked appellant if he admitted guilt in the incidents, to which he replied, "yes". Colloquy, p. 3. In Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), the Court held the accused's admission of guilt in the crime as summarized by the judge provided a sufficient factual basis for the court to accept the plea. Thus, the colloquy instantly was not deficient in this respect.

Next, appellant urges he was not told the nature of the charges to which he was pleading guilty. However, the court informed appellant:

Burglary is not necessarily a crime of taking. Burglary is established whether there has been a taking or not. The essence of burglary in ordinary language, Mr. Weiss, is the unlawful entry into a property and at the time there is an intention to commit an illegal act inside. The crime is complete with the ...


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