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COMMONWEALTH PENNSYLVANIA v. SALVATORE ABBRUZZESE (12/18/81)

filed: December 18, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
SALVATORE ABBRUZZESE, APPELLANT



No. 632 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Pennsylvania entered on March 5, 1980 denying Post Conviction Relief. Nos. 75-04-1534, 75-06-1294.

COUNSEL

Michael D. Rubin, Philadelphia, for appellant.

Gaele McLaughlin Barthod, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Johnson and Popovich, JJ. Johnson, J., concurs in the result.

Author: Popovich

[ 293 Pa. Super. Page 248]

This is an appeal from an order denying, after hearing, the relief requested in appellant's counseled Post Conviction Hearing Act*fn1 (PCHA) petition. We affirm.

Appellant entered guilty pleas on two informations charging Burglary,*fn2 and Possession with Intent to Deliver a Controlled Substance*fn3 pursuant to a plea bargain by which the Commonwealth nol prossed other charges. After an extensive colloquy, the trial court accepted the pleas and sentenced appellant to serve concurrent terms of imprisonment of five to fifteen years. A timely motion for reconsideration of the sentence was denied after hearing. No direct appeal from the judgments of sentence was taken. Some twenty-two months later, appellant, with counsel, filed a

[ 293 Pa. Super. Page 249]

PCHA petition alleging, as he does on this appeal, (1) that he entered his guilty pleas solely at the urging of his original counsel who had promised him a minimum sentence of not more than three years, and (2) that counsel failed to advise him of his right to file a motion to withdraw his guilty plea. These grounds were also reasserted in an amended PCHA petition. After hearings on the PCHA petitions, the hearing court issued an order denying relief. We affirm.

Before reaching the merits of appellant's claims, we need to determine the scope of review to be given in this case. The prosecution argues on appeal that appellant has waived the right to raise claims concerning his guilty plea because his failure to appeal constitutes a rebuttable presumption of a "knowing and understanding" waiver. 19 P.S.A. § 1180-4(b)(1). We will consider each claim seriatim.

Appellant's first allegation that he was deprived of the effective assistance of counsel because counsel failed to advise him of his right to file a motion to withdraw a guilty plea constitutes "extraordinary circumstances excusing appellant's failure to raise the issue previously." Commonwealth v. Maute, 263 Pa. Super. 220, 224 ftn. 2, 397 A.2d 826, 828 ftn. 2 (1979).

At the guilty plea, sentencing, and reconsideration hearings, appellant was represented by the same counsel. Appellant's PCHA counsel is different from his guilty plea counsel, thus properly preserving the issue of the latter's ineffectiveness.*fn4 See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). Furthermore, we have said:

"[i]f counsel on direct appeal is the same as trial counsel, and the issue of trial counsel['s] ineffectiveness is not asserted on appeal (either by failure to take an appeal at all or by not raising the issue on appeal), there is no waiver. Commonwealth v. Dancer, [ supra ]. As we said

[ 293 Pa. Super. Page 250]

    in Commonwealth v. Mabie, 467 Pa. 464, ...


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