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COMMONWEALTH PENNSYLVANIA v. WILBERT H. BELLEMAN (05/28/82)

filed: May 28, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
WILBERT H. BELLEMAN, JR., APPELLANT



No. 1714 Philadelphia, 1980, Appeal from the order dated June 17, 1980, Court of Common Pleas, Criminal Division, Lebanon County, at No. 293 of 1978.

COUNSEL

John D. Enck, Lebanon, for appellant.

William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.

Spaeth, Wieand and Johnson, JJ. Wieand, J., files a dissenting statement.

Author: Johnson

[ 300 Pa. Super. Page 211]

This is an appeal from the denial of appellant's Post Conviction Hearing Act*fn1 [PCHA] petition. After a guilty plea, appellant was sentenced to imprisonment for one and a half to four years on a charge of escape*fn2 and one to two years on a charge of indecent assault,*fn3 the sentences to run

[ 300 Pa. Super. Page 212]

    concurrently. The charges arose out of an incident which occurred while appellant, a prisoner at the Lebanon County Prison, was temporarily away from a work detail engaged in menial tasks in Monument Park outside the prison grounds and within the City of Lebanon. He had sought and received permission to leave the park in order to use a men's room at a nearby gasoline service station. According to appellant, the designated men's room was out of order, so he proceeded further up the street to a pizza shop where he found another men's room.

Instead of returning directly to the work detail in Monument Park, appellant made a detour, during which he indecently assaulted a woman in her back yard. The Lebanon County Prison officer in charge of the work detail was just starting to look for appellant when he came running up the street towards the work site. Appellant rejoined the work party which remained on the work site for another hour and a half before returning to the prison. The next morning appellant was charged with escape and indecent assault.

After the sentencing appellant filed no post-sentence motions. Subsequently, with the aid of new counsel, he filed a petition under the Post Conviction Hearing Act, alleging that the plea of guilty to the charge of escape was not voluntary. A hearing was held and the petition was dismissed. Appeal to this court from that dismissal was timely filed. Appellant's appeal is based on the contentions (1) that his guilty plea to the escape charge was unlawfully induced by threats from the prison warden (who was related to the victim of the indecent assault); (2) that prior to the plea he was not advised by his counsel as to the elements of the crime of escape, nor as to any defenses he might have; (3) that at the guilty plea colloquy there was disagreement as to the factual basis for the charge, and again no discussion of the elements of the offense of escape; (4) that counsel did not advise him of the defects in the guilty plea colloquy. The latter three claims are embraced in a claim of ineffectiveness of counsel: that counsel was ineffective in not objecting to the defects and in not advising him of the defects.

[ 300 Pa. Super. Page 213]

The Commonwealth argues that these issues are waived because of appellant's failure to move to withdraw his guilty plea or to file a direct appeal. The Commonwealth also argues that appellant has not shown extraordinary circumstances justifying this failure.

Under the PCHA, a petitioner may be eligible for relief if he can prove, inter alia, that his plea of guilty was unlawfully induced, and that the error asserted is not finally litigated or waived. 19 P.S. § 1180-3(c)(7), (d). Waiver occurs where a petitioner knowingly and understandingly fails to raise the issue at a time when he could have done so. 19 P.S. § 1180-4(b). The existence of extraordinary circumstances justifying the failure to raise the issue at the appropriate time counteracts the waiver. 19 P.S. § 1180-4(b)(2). It is settled law that ineffectiveness of counsel constitutes extraordinary circumstances and thus precludes a finding of waiver under the PCHA. Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976); Commonwealth v. Peele, 291 Pa. Super. 84, 435 A.2d 231 (1981). Since three of the issues are raised in the context of a claim of ineffectiveness of counsel they are not waived. Furthermore, because we find that appellant's guilty plea colloquy was defective and that he must therefore be allowed to withdraw the plea, we address neither the claim that the plea was unlawfully induced by threats (thus constituting "extraordinary circumstances"), nor either of the other two remaining claims.

It is the rule that defendants must be advised of the elements of the crime to which they are pleading guilty. See Pennsylvania Rule of Criminal Procedure 319, which provides that a judge shall not accept a plea of guilty unless he determines, after inquiry of the defendant on the record, that the plea is voluntarily and understandingly tendered. Pa.R.Crim.P. 319(a), (b)(2). Our supreme court has ruled that an adequate on-the-record colloquy must include a demonstration that the defendant understands the nature of the charges. Commonwealth v. ...


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