No. 940 April Term, 1979, Appeal from the Judgment of Sentence dated September 27, 1979, Court of Common Pleas, Criminal Division, Allegheny County, at No. CC7601948.
David G. Metinko, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Spaeth, Johnson and Popovich, JJ. Popovich, J., concurs in the result.
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Appellant was found guilty of Burglary,*fn1 Robbery,*fn2 and Aggravated Assault.*fn3 A motion for a new trial was granted, after which Appellant pled guilty to a single count of Burglary. On November 23, 1976, he was sentenced to a five-year period of probation. In May, 1979, Appellant was convicted on an unrelated charge of Armed Robbery.*fn4 On September 10, 1979, the trial judge on the earlier sentence was advised of the subsequent conviction; and a probation violation hearing was held on September 27, 1979.
At this hearing, the lower court revoked and set aside the probation and sentenced Appellant to incarceration of not less than five, nor more than twenty, years. This appeal is from the judgment of sentence of September 27, 1979.
Appellant presents seven issues for our consideration. First, was the guilty plea unintelligently, unknowingly, and involuntarily entered? Second, was Appellant denied the right to effective assistance of counsel at the guilty plea hearing and at the probation revocation hearing? Third, did the trial court violate due process when it introduced extrinsic evidence to determine whether or not Appellant received proper notice of the probation violation? Fourth, was the period of time between the alleged probation violation and the probation revocation hearing so unreasonable that it constituted a denial of due process? Fifth, did the trial court's failure to inform Appellant of his rights, as mandated
[ 290 Pa. Super. Page 316]
by Pa.R.Crim.P. 1405, constitute a denial of due process? Sixth, did the trial court err in not granting Appellant an opportunity to withdraw his guilty plea before sentencing?
Appellant's seventh issue was presented after this court, on November 11, 1980, granted Appellant's Motion to Amend Brief to present an additional argument. This additional argument is that the imposition of a sentence exceeding the five-year period of probation constituted double jeopardy.
For the following reasons, we vacate the judgment of sentence of September 27, 1979, and remand.
Appellant's first issue, which challenges the validity of the guilty plea that he entered in 1976, is not properly before this court. Appellant has filed neither a direct appeal from the order of probation nor a petition under the Post Conviction Hearing Act*fn5 to challenge the validity of the guilty plea. Appellant cannot collaterally attack ...