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COMMONWEALTH PENNSYLVANIA v. WILLIAM ASHBY (09/17/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: September 17, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM ASHBY, APPELLANT

NO. 383 PITTSBURGH, 1980, Appeal from the order of the Court of Common Pleas of Beaver County, Criminal Division, at Nos. 359-362 of 1975.

COUNSEL

John A. Clay, Beaver, for appellant.

John L. Brown, Assistant District Attorney, Beaver, for Commonwealth, appellee.

Montgomery, Hoffman and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.

Author: Hoffman

[ 304 Pa. Super. Page 396]

This is an appeal from the lower court's denial of appellant's Post Conviction Hearing Act (PCHA) petition. Because we are unable to determine the merits of appellant's contentions on the record before us, we must vacate the order of the lower court and remand for an evidentiary hearing.

On June 9, 1975, appellant entered counseled guilty pleas to four counts each of burglary and theft by unlawful taking. No direct appeal was taken. On May 13, 1976, appellant filed a pro se PCHA petition challenging the voluntariness of his pleas and the effectiveness of his counsel.*fn1 The lower court appointed new counsel, heard argument, and then dismissed the petition without an evidentiary hearing. Appellant's pro se PCHA petitions filed on May 10, 1978 and August 10, 1978 were dismissed without appointment of counsel or evidentiary hearings because the claims were substantially similar to those denied in the first PCHA petition. No appeals were taken from any of these dismissals. Appellant filed this pro se petition on August 2, 1979, alleging for the first time that the guilty plea colloquy was inadequate and that the sentencing court had failed to advise him of his right to appeal. The PCHA court found the plea colloquy adequate but agreed that appellant had not been informed of his right to appeal. It dismissed the petition, however, because the only issues cognizable on appeal had been waived by failing to raise them in prior PCHA petitions. Appellant perfected an appeal to this Court, and new counsel was appointed.

On this appeal, appellant contends that his PCHA counsel was ineffective in failing to: (1) amend his petition to challenge the lack of a factual basis for the guilty plea; (2) challenge the sentencing colloquy when the lower court had not informed appellant of his rights to withdraw his guilty plea and appeal; and (3) advise appellant to appeal from the denial of PCHA relief. Although these claims

[ 304 Pa. Super. Page 397]

    appear to have arguable merit, the present record is insufficient to permit a determination of whether counsel had a reasonable basis for failing to pursue them. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Accordingly, we must remand for an evidentiary hearing on PCHA counsel's effectiveness.*fn2 Either party aggrieved by the lower court's actions on remand may take a new appeal as allowed by law.

Order vacated and case remanded for proceedings consistent with this opinion.

VAN der VOORT, Judge, dissenting:

Appellant filed his fourth PCHA petition on August 2, 1979.*fn1 In such he averred that the sentencing court failed to advise him of his right to appeal and that the guilty plea colloquy was inadequate. Appellant now argues on this appeal that counsel on his first PCHA petition was ineffective in not raising the above issue and in not appealing the adverse ruling on the first petition.

Reviewing the fourth petition, I do not find that such petition alleged that prior PCHA counsel was ineffective. While appellant may have checked off the block, in the standardized petition, questioning counsel's effectiveness, nowhere in the petition is there any indication that he was challenging PCHA's counsel's stewardship. Appellant's claim was not properly presented in his fourth petition and neither the trial court or this court should consider it. Commonwealth v. Carrier, 494 Pa. 305 n. 3, 431 A.2d 271, 273,

[ 304 Pa. Super. Page 398]

    n. 3 (1981); Commonwealth v. Zillgitt, 489 Pa. 189, 192 n. 3, 413 A.2d 1078, 1079 n. 3 (1980); Commonwealth v. Stokes, 294 Pa. Superior Ct. 529, 440 A.2d 591 (1982); Commonwealth v. Stanton, 294 Pa. Superior Ct. 516, 440 A.2d 585 (1982).

I respectfully dissent.


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