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COMMONWEALTH PENNSYLVANIA v. MICHAEL J. RUSINKO (08/13/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 13, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL J. RUSINKO, APPELLANT

No. 2674 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Luzerne County at Nos. 1233, 1234, 1323, 1510, 1511, 1512 of 1979

COUNSEL

Joseph F. Iracki, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Cavanaugh, Watkins and Van der Voort, JJ.

Author: Cavanaugh

[ 303 Pa. Super. Page 218]

Appellant Michael J. Rusinko has taken this appeal from the trial court's denial, without a hearing, of his Post Conviction Hearing Act (PCHA) petition. We find that the trial court erred in summarily dismissing appellant's petition and we therefore reverse and remand for an evidentiary hearing.

Appellant pled guilty on September 17, 1979, to one count of indecent assault, one count of escape, and four counts of burglary. Pursuant to a plea negotiation, the Commonwealth nol prossed two other charges. No petition to withdraw the guilty plea was filed. On November 1, 1979, appellant was sentenced to consecutive terms of two and one-half to five years imprisonment on two of the burglary charges. Sentence was suspended on the remaining charges. No direct appeal was taken from the judgments of sentence.

The PCHA petition which is the subject of this appeal was filed on September 10, 1980. Appellant has alleged in this petition that his trial counsel was ineffective for failing to file an appeal in spite of appellant's request that he do so and that his guilty plea was unlawfully induced by his counsel's promise that any sentences imposed would run concurrently.*fn1 After hearing oral argument of counsel on

[ 303 Pa. Super. Page 219]

October 22, 1980, the trial court dismissed appellant's petition as frivolous and denied a hearing under the PCHA.

The Commonwealth claims that appellant has waived his right to challenge the validity of his guilty plea. It is true that the validity of a guilty plea should normally be challenged by way of a petition to withdraw the plea or by direct appeal. It is clear, however, that where an appellant also claims ineffective assistance of counsel resulting in denial of appellate rights, he has not waived his right to challenge his plea. Since appellant has alleged that his trial counsel failed to file an appeal after appellant requested him to do so, his right to challenge the guilty plea has not been waived.*fn2 Commonwealth v. Henderson, 298 Pa. Super. 180, 444 A.2d 720 (1982); Commonwealth v. Peele, 291 Pa. Super. 84, 435 A.2d 231 (1981); Commonwealth v. Paige, 287 Pa. Super. 133, 429 A.2d 1135 (1981); Commonwealth v. Farnwalt, 286 Pa. Super. 559, 429 A.2d 664 (1981); Commonwealth v. McCall, 267 Pa. Super. 351, 406 A.2d 1077 (1979); Commonwealth v. Strader, 262 Pa. Super. 166, 396 A.2d 697 (1978).

As stated above, appellant claims that his guilty plea was unlawfully induced by his counsel's promise that any

[ 303 Pa. Super. Page 220]

    sentences imposed would run concurrently. The sentences actually imposed were to run consecutively. Even though appellant stated during the guilty plea colloquy that his plea was not induced by any promises regarding sentencing, the record does not clearly refute his claim that the alleged promise was made. We have held in many cases that under these circumstances, an evidentiary hearing should be held by the PCHA court to determine whether the guilty plea was, in fact, unlawfully induced. Commonwealth v. Henderson, supra; Commonwealth v. Peele, supra; Commonwealth v. Paige, supra; Commonwealth v. Farnwalt, supra; Commonwealth v. McCall, supra; Commonwealth v. Strader, supra.

For the reasons stated above, we reverse the order dismissing appellant's PCHA petition and remand with the following instructions. The court should conduct an evidentiary hearing to determine whether appellant did, in fact, request his trial counsel to file an appeal challenging the validity of his guilty plea. If the court finds that he did not make such a request, then it should dismiss the PCHA petition for appellant will have waived his right to challenge his guilty plea. Commonwealth v. Paige, supra. If, however, the court finds that appellant did make such a request, then it should permit him to file a motion to withdraw the plea nunc pro tunc, Commonwealth v. Clark, 296 Pa. Super. 315, 442 A.2d 786 (1982), and an evidentiary hearing should be held on that motion to determine whether appellant's guilty plea was, in fact, unlawfully induced.


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