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COMMONWEALTH PENNSYLVANIA v. BRUCE ANTHONY CLARK (03/12/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 12, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
BRUCE ANTHONY CLARK, APPELLANT

No. 2198 October Term, 1979, No. 248 Philadelphia, 1980, Appeal from the Order and Judgment of Sentence of the Court of Common Pleas, Criminal Division, Montgomery County, at No. 2615-78.

COUNSEL

Arthur J. King, Assistant Public Defender, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Cercone, President Judge, and Hester and Cavanaugh, JJ.

Author: Cercone

[ 296 Pa. Super. Page 316]

Appellant entered an open plea of guilty to the charges of robbery*fn1 and conspiracy to commit robbery*fn2 and was sentenced to five to fifteen years. A petition to reconsider the sentence was filed and denied. Appellant did not file a motion challenging the validity of the guilty plea pursuant to Rule 321 of the Pennsylvania Rules of Criminal Procedure nor was a direct appeal taken in the case. Subsequently, however, appellant filed a petition under the Post Conviction

[ 296 Pa. Super. Page 317]

Hearing Act (hereinafter PCHA) challenging his convictions. Within this petition, appellant faulted trial counsel for failing to file a suppression motion and for failing to take a direct appeal. Following an evidentiary hearing, the PCHA court determined that the claim asserting the denial of appellate rights was meritorious and granted appellant the right to file an appeal nunc pro tunc. The PCHA court also reviewed and denied the suppression issue raised in the petition. Thereafter, appellant filed a nunc pro tunc appeal from the Judgment of Sentence and a second appeal from the order of the PCHA court insofar as it had denied relief on the suppression issue. These two appeals were then consolidated by our Court for briefing and argument.

Procedurally, it was incorrect for appellant to take an appeal from the order of the PCHA court denying relief. As stated in Commonwealth v. Miranda, 296 Pa. Super. 441, 442 A.2d 1133:

[O]nce the PCHA court decides the accuracy of the deprivation of appellate rights claim and grants the nunc pro tunc appeal, its review of any remaining claims would not be considered final review of the issues, but would only be seen as serving the evidentiary purpose of completing the record. As such, the evidentiary review would not result in a separate appealable order. (emphasis supplied).

See also Commonwealth v. May, 296 Pa. Super. 435, 442 A.2d 1129. This appeal must, therefore, be quashed.*fn3

Second, we must reverse the order of the PCHA court granting the right to file an appeal nunc pro tunc. Instead, the case is to be remanded to the trial court to permit appellant to file a motion pursuant to Rule 321 of the Pennsylvania Rules of Criminal Procedure, challenging the validity of the guilty plea. Because this case involved a guilty plea situation, appellant has waived his right to

[ 296 Pa. Super. Page 318]

    challenge anything but the validity of his sentence and the voluntariness of his plea. See Commonwealth v. Montgomery, 485 Pa. 110, 401 A.2d 318 (1979); Commonwealth v. Arndt, 269 Pa. Superior Ct. 578, 410 A.2d 852 (1979). In order to preserve these two issues for appellate review, it was necessary that appellant challenge his plea by filing a Rule 321 motion. See Commonwealth v. Ford, 484 Pa. 163, 398 A.2d 995 (1979); Commonwealth v. Rosmon, 477 Pa. 540, 384 A.2d 1221 (1978); Commonwealth v. Cooper, 276 Pa. Superior Ct. 86, 419 A.2d 107 (1980). Rule 321 parallels the procedure outlined under Rule 1123, which deals with the necessity for filing post-verdict motions following trials. Under Rule 321 the trial court is to have the first opportunity to review challenges either to the validity of the guilty plea or to the denial of a motion to withdraw the guilty plea. Such review not only permits the trial court to correct any errors alleged, but also provides a complete record should the case proceed to the appellate court. Where the PCHA court finds a deprivation of appellate rights claim to be meritorious, and there has been no post verdict motions filed, we have said that the proper remedy is to permit the filing of such motions nunc pro tunc. Commonwealth v. Miranda, supra, See also Commonwealth v. Morris, 486 Pa. 391, 406 A.2d 337 (1979); Commonwealth v. Stackpole, 275 Pa. Superior Ct. 255, 418 A.2d 709 (1980). Correspondingly, in a guilty plea situation where the deprivation of appellate rights claim has been found meritorious and no Rule 321 motion has been filed, then the proper remedy is to permit the filing of this motion nunc pro tunc. Herein, by granting the nunc pro tunc appeal, the PCHA court precipitously placed this case on the appellate level. Because appellant failed to file a Rule 321 motion below, we are without the benefit of a complete record on appeal.

Order of lower court granting appellant the right to file an appeal nunc pro tunc is reversed. We remand this case to the trial court for the filing of a motion pursuant to Rule

[ 296 Pa. Super. Page 319321]

.*fn4 Appellant is to be permitted to file such a motion within thirty (30) days from the date of the entry of this order. In the event that the court below dismisses such motion, appellant shall be permitted to file an appeal from the judgment of sentence, as though timely filed, in the appropriate court.

Appeal from the order of the PCHA court denying relief at No. 2198 October Term, 1979, is quashed.


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