No. 195 Philadelphia, 1982, Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 1279 July Term, 1978.
Mitchell S. Strutin, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Wieand and Hoffman, JJ.
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Frederick Scott entered a counseled plea of guilty to robbery and criminal conspiracy as a result of his participation in the robbery of a member of the Philadelphia Police Department's "Grandpop Squad" on June 14, 1978. He was sentenced on January 9, 1979 to a term of imprisonment for not less than four (4) nor more than eight (8) years. Scott did not file a motion to withdraw his guilty plea or to modify his sentence and did not take a direct appeal. Subsequently, Scott filed a pro se P.C.H.A. petition in which he alleged that his guilty plea had been induced by trial counsel's promise of a less severe sentence and that his counsel had been ineffective because he failed to object when the sentencing court erroneously cited and relied upon an inapplicable sentencing guideline to impose a minimum sentence of four (4) years. Counsel was appointed, and an amended petition was filed. Following an evidentiary hearing before the Honorable Edward J. Blake, the P.C.H.A. petition was dismissed. This appeal followed, in which Scott is represented by new counsel. Because there is merit in appellant's second contention, we remand for resentencing.
Ordinarily, the failure to file a petition to withdraw a guilty plea, combined with the failure to pursue a direct appeal, will bar consideration of the validity of the plea in a subsequent collateral proceeding. Commonwealth v. Knox, 304 Pa. Super. 368, 372, 450 A.2d 725, 727 (1982); Commonwealth v. McGarry, 280 Pa. Super. 527, 529-530 n. 2, 421 A.2d 847, 848 n. 2 (1980); Commonwealth v. Campbell, 269 Pa. Super. 467, 469, 410 A.2d 350, 352 (1979). In this case, however, the record discloses that appellant was not advised of his right to file such motions or of the consequences of a failure to do so. Therefore, appellant is
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not barred from challenging the validity of his plea in these proceedings. Commonwealth v. Frankhouser, 491 Pa. 171, 176, 420 A.2d 396, 398-399 (1980); Commonwealth v. Brandon, 485 Pa. 215, 217, 401 A.2d 735, 737 (1979); Commonwealth v. Crawford, 285 Pa. Super. 169, 185, 427 A.2d 166, 174 (1981); Commonwealth v. McGarry, supra.
Appellant contends that his guilty plea was involuntary because unlawfully induced by counsel's promise of a two (2) to five (5) year sentence to run concurrently with another sentence to be imposed by a different judge in a separate proceeding. The record of the guilty plea colloquy belies this claim. When asked whether he had been "promised . . . anything in terms of sentence that has influenced your decision to plead guilty[,]" appellant responded that he had not. He agreed with his counsel at that time that the plea being entered was an open plea of guilty and that there had been no agreement concerning the sentence to be imposed. Faced with his own unequivocal denial of the existence of a promise as to sentencing, appellant now suggests that he lied throughout the colloquy in order to insure the acceptance of his plea. However, "[a] criminal defendant who elects to plead guilty has a duty to answer questions truthfully. We cannot permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel." Commonwealth v. Brown, 242 Pa. Super. 240, 247, 363 A.2d 1249, 1253 (1976). Moreover, at the P.C.H.A. hearing the testimony of appellant's trial counsel confirmed that he had made no promise to appellant regarding the length of the sentence. It was also demonstrated, contrary to appellant's assertions, that the Public Defender's file failed to support a promise of a sentence of two (2) to five (5) years. The P.C.H.A. court resolved the credibility issue against appellant and found that no promises had been made by counsel or by anyone else. This finding is fully supported by the record; we will not disturb it on appeal. Commonwealth v. Williams, 310 Pa. Super. 501, 514, 456 A.2d 1047, 1054 (1983). It is by now well
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established that disappointed expectations will not alone vitiate a guilty plea. Commonwealth v. Waddy, 463 Pa. 426, 429 n. , 345 A.2d 179, 180 n. (1975); Commonwealth v. Sanutti, 454 Pa. 344, 347, 312 A.2d 42, 44 (1973); Commonwealth v. Brown, supra 242 Pa. Super. at 247, 363 A.2d at 1253.
Appellant also contends that his trial counsel was ineffective for failing to object when the sentencing court relied upon Section 5 of the Act of November 26, 1978, P.L. 1316, No. 319 (reported in the note following 42 Pa.C.S. § 9721 and entitled "Interim Sentencing Guidelines"), to impose a sentence of imprisonment for not less than four nor more than eight years. This statutory provision became effective January 1, 1979 but had application only to offenses occurring subsequent thereto. Commonwealth v. Garris, 280 ...