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filed: November 6, 1981.


No. 1234 Philadelphia, 1980, Appeal from the Order dated February 22, 1980, of the Court of Common Pleas of Luzerne County, Criminal Division at Nos. 648A, 1059, 1064, 1075, 1282 of 1978.


Frank Bognet, Hazleton, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Brosky, Johnson and Popovich, JJ.

Author: Popovich

[ 292 Pa. Super. Page 173]

The only issue appellant, John Whittaker, raises in this appeal is whether the post-conviction hearing court properly dismissed his post-conviction hearing act petition without conducting a hearing. See the Act of January 15, 1966, P.L. (1965) 1580 § 1 et seq., 19 P.S.A. § 1180-1 et seq. (1981-2). More specifically, appellant contends that a hearing is necessary because "the record clearly demonstrates (1) that the Petitioner reluctantly entered his guilty pleas; and (2) that his (public defender) counsel was confused as to the amount of 'back-time' the defendant would be required to serve (on prior convictions) as a result of the guilty pleas." Brief for Appellant, at 6. We cannot agree.

[ 292 Pa. Super. Page 174]

First of all, appellant's challenge to the voluntariness of his guilty plea is waived as that issue should have been raised previously before the trial court in a motion to withdraw the guilty plea. See Commonwealth v. Lantzy, 284 Pa. Super. 192, 200, 425 A.2d 768, 772 (1981); Commonwealth v. Maute, 263 Pa. Super. 220, 397 A.2d 826 (1979). If that was unsuccessful, appellant could have raised the issue on direct appeal.*fn1 Commonwealth v. Allen, 278 Pa. Super. 501, 507, 420 A.2d 653, 656 (1980). Since that objection was not raised, it is waived unless appellant demonstrates extraordinary circumstances precluding waiver. Commonwealth v. Allen, supra.*fn2

Although inartfully framed, appellant's second allegation is an attack on trial counsel's ineffectiveness for being "confused" at the sentencing proceeding. See also the Sentencing Transcript, (10/25/78), at 2-3. There being no

[ 292 Pa. Super. Page 175]

    waiver with respect to trial counsel's ineffectiveness, see Commonwealth v. Maute, supra, we must consider whether an evidentiary hearing was required to determine the validity of appellant's claim.*fn3 This Court has said:

"Appellant's claims of ineffectiveness must be evaluated in the context of his guilty plea. Upon entry of a plea of guilty, all grounds of appeal are waived other than challenges to the voluntariness of the plea and the jurisdiction of the sentencing court. Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974). Thus allegations of ineffective assistance of counsel in connection with entry of the guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea. See Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976)." Commonwealth v. Chumley, 482 Pa. 626, 641-42, 394 A.2d 497, 504-5 (1978) (emphasis added).

Because appellant has failed to show in what way counsel's "confusion" at the sentencing hearing "caused appellant to enter an involuntary or unknowing plea," Commonwealth v. Chumley, Id, appellant was not entitled to an evidentiary hearing. See Section 9 of the PCHA Act ("the court may deny a hearing if the petitioner's claim is patently frivolous

[ 292 Pa. Super. Page 176]

    and is without a trace of support . . . in the record . . . .). In any event, a review of the record reveals that whatever "confusion" existed at the sentencing hearing was considered by the court when the sentence was imposed. Sentencing Transcript (10/25/78) at 3. Hence, appellant's allegation is patently frivolous and without support in the record.

Appellant finally suggests that "judicial economy would be promoted if a mandatory hearing were provided in all, or nearly, all, cases where ineffective assistance of counsel or voluntariness of plea is at issue (in a first Post Conviction Hearing Act Petition)." Brief for Appellant, at 14 (emphasis in original). We must decline appellant's invitation to overrule Section 9 of the Post Conviction Hearing Act and the cases of this jurisdiction which state that:

"the right to a hearing on a PCHA petition is not absolute. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Cimaszewski, 234 Pa. Super. 299, 339 A.2d 95 (1975); Commonwealth v. Hayden, 224 Pa. Super. 354, 307 A.2d 389 (1973)." Commonwealth v. Miller, 275 Pa. Super. 236, 238, 418 A.2d 700, 701 (1980).

Therefore, we will not disturb the order of the court below which dismissed appellant's petition without a hearing.*fn4

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