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COMMONWEALTH PENNSYLVANIA v. LOUIS MCCLOUD (03/18/83)

filed: March 18, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
LOUIS MCCLOUD



No. 705 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 47-04-217-273.

COUNSEL

Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Ronald Allan Smith, Philadelphia, for appellee.

Hester, Wickersham and Popovich, JJ.

Author: Popovich

[ 312 Pa. Super. Page 31]

This is an appeal by the Commonwealth from an Order granting a new trial to appellee, Louis McCloud. Appellee was arrested on February 10, 1947, and charged with twenty-four (24) robberies and two (2) auto thefts. Appellee pleaded guilty to two (2) armed robberies and was sentenced to a term of fifteen (15) to thirty-five (35) years imprisonment. Mr. McCloud filed no post-verdict motions and did not take a direct appeal from judgment of sentence. On June 27, 1979, thirty-two (32) years after having been sentenced,*fn1 Mr. McCloud filed a pro se writ of habeas corpus. Subsequently, court-appointed counsel filed an amended P.C.H.A.*fn2 petition alleging, inter alia, that appellee's trial counsel was constitutionally ineffective in failing to attempt to suppress an involuntary confession, in failing to inform appellee of his right to appeal and his right to

[ 312 Pa. Super. Page 32]

    free counsel on appeal, and for representing both appellee and a co-defendant thus creating a conflict of interest.

The court below conducted hearings on the amended P.C.H.A. petition, and heard the testimony of appellee, his trial counsel, and trial counsel for a co-defendant who had pleaded not-guilty. At the conclusion of testimony and argument, the P.C.H.A. court granted Mr. McCloud's petition for relief and ordered a new trial.

The Commonwealth has filed this appeal from the lower court's order, alleging that by pleading guilty appellee waived his right to attack his sentence collaterally on the grounds that his confession was involuntary, and that, because of his thirty-two (32) year delay in seeking relief and his admission of guilt while testifying at the trial of a co-defendant, appellee should be barred from relief by the equitable doctrine of laches.

We find merit in the Commonwealth's first contention and, accordingly, reverse the lower court's grant of post conviction relief. Because of our disposition of this appeal, we do not reach the Commonwealth's second contention of error.*fn3

The prosecution contends that the PCHA court granted appellee relief on a waived claim "despite [appellee's] waiver of the confession issue when he pled guilty in 1947." Brief for Appellant at 7. In examining whether a defendant may collaterally attack his guilty plea, we have said the following:

"Upon entry of a plea of guilty, all grounds of appeal are waived other than challenges to the voluntariness of the plea and the jurisdiction of the sentencing court." Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974).

[ 312 Pa. Super. Page 33]

    v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976)." (Emphasis added) Commonwealth v. Chumley, supra, 482 Pa. at 639-41, 394 A.2d at 504-5.

In the case before us, appellee has failed to allege that his counsel incompetently caused him to enter an "involuntary or unknowing plea," id., thus, the issues concerning the illegal ...


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