No. 1510 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1915-1917 October Term, 1978
Arnold L. New, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Spaeth, J., files a dissenting opinion.
[ 293 Pa. Super. Page 311]
Appellant was charged with the crimes of rape, recklessly endangering another person, terroristic threats, indecent assault, indecent exposure, unlawful restraint, kidnapping and possessing instruments of crime, as well as violations of the Uniform Firearms Act. On April 16, 1979, he pleaded guilty to rape, terroristic threats and carrying firearms on a public street. The remaining charges were nolle prossed. No post-verdict motions were filed.
Thereafter, appellant was sentenced on June 19, 1971 to a term of imprisonment of five to ten years for rape and two to four years on the firearms charge, to run concurrently. Sentence on the terroristic threats charge was suspended. At the close of the sentencing hearing, Mr. Smith, appellant's public defender, stated in open court to appellant, in regard to his post-trial warnings, "If you wish to appeal, you must do so within 30 days of today's date on only the grounds that have already been explained to you during the colloquy on the guilty plea."
[ 293 Pa. Super. Page 312]
Appellant was not told that before he could take an appeal from any sentence imposed, it would first be necessary to file a petition to withdraw the plea in accordance with Pa.R.Crim.P. 321. Three days later, on June 22, appellant was brought back before the sentencing judge who informed him in detail of the requirement that he first file written motions, within ten days, challenging the validity of the plea, the legality and propriety of the sentence, and whether the plea was entered voluntarily and intelligently. Appellant was told that he had until July 3, 1979 to file the motions. No motions were filed in accordance with Pa.R.Crim.P. 321. On July 17, 1981, notice of appeal to our court from the judgment of sentence was filed by appellant pro se.*fn1 On September 20, 1979, the lower court filed an opinion which held that appellant had waived his right to appeal to our court by failing to file a motion with the lower court challenging the validity of the guilty plea.
In his brief, appellant argues that his public defender was ineffective for allowing the guilty plea to proceed, on the ground that appellant had stated that he had no knowledge of the incident*fn2 and therefore, the guilty plea may not have been voluntary. Appellant also contends that his counsel was ineffective for not correctly informing him of his obligation to first file a petition to withdraw his plea within ten days before perfecting an appeal to the Superior Court.
To begin with, we note that appellant is simply disguising a challenge to the voluntariness of his guilty plea by phrasing it in the language of an ineffectiveness claim. By so doing, appellant apparently hopes to circumvent the fact of his failure to file a petition to withdraw the plea within the requisite ten day period. However, the record clearly shows that appellant was apprised of his appellate rights, including the obligation to file motions attacking the validity of the guilty plea within ten days, both at the time of the initial
[ 293 Pa. Super. Page 313]
guilty plea colloquy, and at the special colloquy three days after sentencing. At the time the guilty plea was entered, the following colloquy took place:
THE COURT: But when you give up your right to a trial and you plead guilty, you can appeal to a high court on only three very narrow grounds, and those grounds are the right of the court to try you . . . the legality of the sentence . . . [and] whether or not your plea was entered into voluntarily, understandingly, with a full knowledge of the rights you were giving up and whether there was any force or threats, whether you actually entered this plea of guilty voluntarily and of your own free will. Do you understand that?
Q. I want to tell you further that if you wish to take an appeal from any sentences imposed as a result of your plea, it would be necessary for you to first file a petition to withdraw your plea before me, setting forth your reason for withdrawal of the plea, and there is no assurance that your petition would be granted.
Q. Do you understand that?
Q. I must also make clear to you that I will accept your plea of guilty only if you assure me this morning that your plea is made by you of your own free will. Now, is your plea of guilty ...