No. 80-3-522, Appeal from the Denial of Post-Conviction Relief by Order of Judge Edward Blake dated April 11, 1980, as of Bill of Indictments No. 597 June Term, 1975, in the Court of Common Pleas of Philadelphia.
Norris E. Gelman, Philadelphia, court-appointed, for appellant.
Robert B. Lawler, Chief, Appeals Div., Gail Thachery, Philadelphia, for the Commonwealth.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Nix, J., filed a concurring opinion.
This is an appeal from an order of the Court of Common Pleas of Philadelphia, which denied appellant's petition for post-conviction relief following an evidentiary hearing. In denying the petition, the PCHA court rejected appellant's claim that his guilty plea had been induced by ineffective assistance of counsel and was thus invalid. We affirm.
Appellant Steven Williams was indicted on charges of murder generally, robbery and criminal conspiracy. Upon certification by the Commonwealth that the charge of murder rose no higher than murder of the third degree, appellant entered a plea of guilty. Following an on-the-record guilty plea colloquy, appellant received concurrent sentences of five to twenty years' imprisonment on the charges of murder of the third degree and robbery, and a sentence of five to ten years' imprisonment on the charge of criminal conspiracy, also to be served concurrently. At no time did trial counsel file either a petition to withdraw the guilty plea or a direct appeal. Subsequently, appellant filed a prose PCHA petition. Court-appointed counsel then amended the petition and, after an adverse ruling by the PCHA court, filed this appeal.
Notwithstanding the Commonwealth's contrary assertion, there is no question that appellant's claim of ineffectiveness of guilty plea counsel was properly before the PCHA court. This ineffectiveness claim, which required an evidentiary hearing for its resolution, was raised at the earliest opportunity when appellant was represented by counsel other than his guilty plea counsel. Because counsel cannot be expected to raise his own ineffectiveness, the ineffectiveness claim was not waived by the failure of guilty plea counsel to file a motion to withdraw the plea or to file a direct appeal. Commonwealth v. Miller, 495 Pa. 177, 433 A.2d 1 (1981); Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981); Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). See also Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
Appellant's claim that his guilty plea was unlawfully induced is founded on the theory that guilty plea counsel failed to advise him fully of the possibilities for success on appellate review if he should be found guilty at trial. Appellant concedes that counsel properly advised him that a pre-trial ruling which had held his confession admissible would possibly be reversed on appeal, but argues that counsel improperly failed to advise him that derivative testimony of an accomplice would also possibly be held inadmissible on appeal as tainted by the invalid confession.*fn*
It is well settled that, where a guilty plea has been entered,
"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 ...