No. 2008 Philadelphia, 1980, Appeal from Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 889/891 Feb. Term, 1980.
Joan Saltzman, Philadelphia, for appellant.
Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Cavanaugh and DiSalle, JJ. DiSalle, J., did not participate in the consideration or decision of this case.
[ 302 Pa. Super. Page 14]
The appellant, Ronald Perkins, pled guilty to charges of criminal conspiracy, criminal trespass and theft. He was later sentenced to 1 1/2 to 3 years imprisonment followed by 4 years of probation on the theft conviction; 3 1/2 to 7 years imprisonment on the criminal conspiracy conviction, to run consecutively with the theft sentence; and, 7 years probation on the criminal trespass conviction, to run concurrently with the conspiracy sentence. After sentencing, the appellant filed a pro se Petition for Reconsideration of Sentence. When that Petition was denied on August 22, 1980, this appeal followed.
[ 302 Pa. Super. Page 15]
Appellant raises a number of arguments, only a few of which need be considered here in light of our disposition of this appeal. He argues that he did not waive his right to challenge the guilty plea on the direct appeal. For reasons hereinafter set forth, we agree and remand for a hearing on appellant's petition to withdraw his guilty plea.
On December 17, 1979, the appellant and his brother broke into a furniture warehouse at 3300 Jasper Street, Philadelphia, removed several boxes containing furniture and loaded them into a van. Four blocks away, at G and Thayer Streets, the co-defendants were apprehended by the police and owner of the furniture store. The recovered boxes were stamped "Julius Snyder Company, 3327 Kensington Avenue." Once the co-defendants were taken into police custody, the appellant issued a statement to Detective Casey whereby he admitted that he and his brother removed several boxes from the warehouse and placed them in his brother's van.
Appellant argues that his trial counsel was ineffective for failing to inform him of the elements of the crime in the guilty plea colloquy, for failing to properly advise him of his rights to petition to withdraw, and for failing to file the petition to withdraw. He concludes, therefore, that he must be permitted to raise the involuntary plea argument for the first time on appeal.
In Commonwealth v. Johnson, 258 Pa. Super. 214, 392 A.2d 760 (1978), the defendant attacked the voluntariness of his plea on direct appeal without first filing a petition to withdraw the plea. The Johnson court permitted him to challenge his plea for the first time on appeal because he never effectively waived his right to appeal. The court ruled that a "finding of waiver must be based on affirmative proof in the record that the defendant has been told by the lower court or counsel of (1) his right to petition to withdraw his guilty plea; (2) his right to assistance of counsel in filing such a petition; (3) the consequences of not filing such a petition." Id. at 762.
[ 302 Pa. Super. Page 16]
That portion of the colloquy instructing the appellant of his appellate ...