No. 1890 October Term, 1979, Appeal from Order of the Court in the Court of Common Pleas, Criminal Division, of Montgomery County at No. 2892 July Term, 1974.
Ronald F. O'Driscoll, Assistant Public Defender, Lansdale, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Price, Cavanaugh and Watkins, JJ.
[ 301 Pa. Super. Page 273]
This is an appeal from an order of the Court of Common Pleas of Montgomery County denying appellant relief under the Post Conviction Hearing Act (PCHA).*fn1
Appellant pleaded to various counts of robbery,*fn2 theft,*fn3 weapons offenses*fn4 and criminal conspiracy*fn5 before the Honorable Benjamin Scirica on July 16, 1975.*fn6 Under a plea agreement, the Commonwealth nolle prossed charges of prohibited offensive weapons, receiving stolen property and other charges. Appellant was sentenced pursuant to the plea agreement to not less than five (5) nor more than fifteen (15) years imprisonment and ordered to pay the costs of prosecution. No motion to withdraw the guilty plea was filed and no direct appeal was taken.
Appellant filed a pro se PCHA petition claiming the ineffectiveness of counsel for failure to object to the imposition of costs. The lower court appointed counsel but denied the petition the following day. On appeal, this court found that though the petition was patently frivolous, the lower court should have afforded the appellant and his appointed counsel an opportunity to amend his uncounseled petition. Commonwealth v. Williams, 266 Pa. Super. 118, 403 A.2d 122 (1979). Appellant filed an amended petition which the lower court denied and this appeal followed.
Appellant contends that trial counsel was ineffective for failing to object to the defective guilty plea colloquy which failed to adequately inform the appellant of his right to a
[ 301 Pa. Super. Page 274]
jury trial. Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). The Commonwealth contends that the guilty plea colloquy was adequate under the state of the law at the time of the appellant's guilty plea. Commonwealth v. Brewer, 479 Pa. 558, 388 A.2d 1071 (1978). We agree with the appellant and accordingly, reverse the order of the court below.*fn7
The pertinent portion of the guilty plea colloquy of July 16, 1975 was as follows:
You understand that you have the right to trial by court or trial before a jury, and if you went to trial before a jury, you could assist your attorney in selecting that ...