No. 1193 Philadelphia 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Luzerne County, No. 1942 of 1975.
Ronald J. Wydo, Wilkes-Barre, for appellant.
Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Brosky, Johnson and Montgomery, JJ.
[ 321 Pa. Super. Page 67]
This appeal arises from the denial of appellant's petition under the Post Conviction Hearing Act*fn1 (hereinafter "PCHA").
Appellant pled guilty to statutory rape on September 13, 1976, and was sentenced four months later to a term of
[ 321 Pa. Super. Page 68]
imprisonment of five (5) to ten (10) years. The direct appeal filed in this court resulted in our remand of the matter to the trial court on July 12, 1978, permitting the nunc pro tunc filing of a petition to withdraw the guilty plea. Commonwealth v. Heck, 258 Pa. Super. 602, 391 A.2d 683 (1978). However, no such petition was filed.
Instead, a pro se PCHA petition was filed by appellant on November 21, 1978. Counsel was appointed and the petition was subsequently amended. The PCHA court dismissed the amended petition without a hearing on November 26, 1979. This court granted appellant's petition for leave to file the instant appeal nunc pro tunc on April 28, 1980.
Appellant argues herein that (1) his guilty plea was involuntarily and unintelligently made as his counsel rendered ineffective assistance before and during his guilty plea hearing; (2) his guilty plea colloquy did not meet the requirements of Pa.R.Crim.P. 319(a);*fn2 and, (3) counsel was ineffective for failing to file a petition to withdraw the guilty plea when this court permitted such filing nunc pro tunc.
A challenge to the validity of a guilty plea should be addressed in a motion before the sentencing court requesting permission to withdraw the plea. Commonwealth v. Dowling, 482 Pa. 608, 394 A.2d 488 (1978). However, if a guilty plea challenge is appended to an ineffective assistance of counsel allegation, the matter may properly be brought before the court in a PCHA petition. Commonwealth v. Herold, 246 Pa. Super. 170, 369 A.2d 866 (1977). We, therefore, need not reach appellant's claim of ...