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submitted: October 14, 1983.


NO. 534 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas of Erie County, Criminal at No. 377 & 393 of 1980.


Terrence P. Cavanaugh, Erie, for appellant.

Michael R. Cauley, First Assistant District Attorney, Erie, for Commonwealth, appellee.

Cavanaugh, McEwen and Beck, JJ.

Author: Mcewen

[ 323 Pa. Super. Page 144]

This is an appeal from the order of the Common Pleas Court which dismissed without a hearing the petition of appellant under the Post Conviction Hearing Act (PCHA).*fn1 Since a pro forma dismissal of the PCHA petition of appellant was not warranted by the circumstances here presented, we remand for an evidentiary hearing.

Appellant entered pleas of guilty to two counts of burglary*fn2 and was sentenced to a term of imprisonment of from five and one-half to thirteen years and to a consecutive five year term of probation. Although appellant neither challenged his plea nor took a direct appeal, he did file, on October 26, 1981, a pro se PCHA petition. Newly appointed counsel filed an amended PCHA petition alleging that as a result of the ineffective assistance of guilty plea counsel,

[ 323 Pa. Super. Page 145]

    appellant was unlawfully induced into entering his pleas.*fn3 The learned hearing judge, for the reasons provided in a very thoughtful and able expression of view, dismissed the petition without oral argument and without a hearing.*fn4

Appellant here reiterates the contention that his plea of guilty was unlawfully induced as a result of the ineffectiveness of prior counsel. He claims that counsel promised him that if he pleaded guilty, he would not be sent to the Western State Penitentiary. Before we consider the merits of this claim however, we must first determine whether it has been waived, since "[a] failure to file a petition to withdraw a guilty plea or to take an appeal constitutes a waiver of any defects in the guilty pleas unless some extraordinary circumstances are shown." Commonwealth v. Reider, 267 Pa. Super. 359, 363, 406 A.2d 1081, 1083 (1979). See also 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. Farnwalt, 286 Pa. Super. 559, 429 A.2d 664 (1981); Commonwealth v. McCall, 267 Pa. Super. 351, 406 A.2d 1077 (1979). Since a claim of ineffective assistance of counsel is an extraordinary circumstance which prevents such a waiver, Commonwealth v. Cofield, 310 Pa. Super. 356, 456 A.2d 650 (1983); Commonwealth v. Henderson, supra; Commonwealth v. Reider, supra, this instant contention has not been waived.*fn5

[ 323 Pa. Super. Page 146]

The pertinent section of the Post Conviction Hearing Act provides:

[T]he court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of facts when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.

19 P.S. § 1180-9 (current version at 42 Pa.C.S.A. § 9549). See also Commonwealth v. Porter, 256 Pa. Super. 163, 389 A.2d 651 (1978). An evidentiary hearing should thus be conducted where the record does not clearly refute the claim of an accused that his plea was unlawfully induced. Commonwealth v. Cofield, supra; Commonwealth v. Rusinko, 303 Pa. Super. 216, 449 A.2d 656 (1982); Commonwealth v. Henderson, supra; Commonwealth v. Paige, 287 Pa. Super. 133, 429 A.2d 1135 (1981); Commonwealth v. Farnwalt, supra; Commonwealth v. McCall, supra; Commonwealth v. Reider, supra. "Our courts have previously determined that in borderline cases petitioners are to be given 'every conceivable legitimate benefit in the disposition of their claims for an evidentiary hearing.'" Commonwealth v. Strader, 262 Pa. Super. 166, 176, 396 A.2d 697, 702 (1978) quoting Commonwealth v. Nahodil, 212 Pa. Super. 77, 79, 239 A.2d 840, 840 (1968).

The petition we here study, as earlier noted, was summarily dismissed. While the record of the colloquy prior to sentencing, as well as the "Statement of Understanding of Rights Prior to Guilty Plea" executed by appellant, reveal that appellant indicated that no promises had been made to

[ 323 Pa. Super. Page 147]

    him concerning what sentence would be imposed if he pleaded guilty, there is no evidence to refute his claim that prior counsel had promised him where the sentence would be served in return for the entry of the pleas. Moreover, the following dialogue at the sentencing proceeding would seem to suggest that appellant may well have believed that he would not serve the sentence in a state institution:

MS. ZACKS-GABRIEL: I would make a brief statement on Mr. Pulling's behalf, your Honor. As is clear, the pre-sentence is rather extensive in this case, very big. One of the things I would like to point out in the pre-sentence is the discussion regarding the mental difficulties of Mr. Pulling. Now, I believe that everybody has gone over the colloquy very well this morning and that there is, hopefully, no question as to Mr. Pulling's understanding of same. However, I think that the Court should consider Mr. Pulling's mental difficulties when imposing sentence. As also indicated in the pre-sentence, your Honor, Mr. Pulling has spent a large majority of his life institutionalized in one setting or another. If the Court decides to send Mr. Pulling to a state institution, I would respectfully request the Court to heed Mr. Amann's statement in the pre-sentence to the difficulties Mr. Pulling had in the institutions before and possibly any recommendation could be attached to the commitment stating that Mr. Pulling would not be institutionalized in Western or Rockview because of his particular difficulties in those institutions, your Honor.

THE COURT: All right.

MS. ZACKS-GABRIEL: His broken home is very obvious in the pre-sentence as is Mr. Pulling's difficulties with education, with employment with all kinds of facets of his life, your Honor. However, he's cooperated fully. I think he is trying his best, and I would respectfully request that the Court possibly consider Mercer as an alternative, although the time certainly won't be as extensive as the District Attorney might request. I think that Mercer might provide a setting whereby Mr. Pulling,

[ 323 Pa. Super. Page 148]

    perhaps for the first time, could get some kind of guidance and assistance with the difficulties he faces. That's all, your Honor. Thank you.

THE COURT: Okay, the reasons for the sentences are: I considered the guidelines of sentencing in Pennsylvania, I considered the nature of the crimes which you committed which were somewhat violent in nature, I've considered your prior record, and I've considered the evaluations, especially the mental difficulties you have had, and I believe I am being lenient in these sentences for as you were told, the maximum I could give you would be a $50,000 fine and twenty to forty years in prison, and I am not doing anything of that sort. On 377 of 1980 -- or 393 of 1980, pay the costs of prosecution, five years probation, to run consecutively to the sentence at 377 of 1980, and I recommend an institution other than Western Penitentiary or Rockview be utilized by the Bureau of Corrections for his incarceration, $300 fine, costs, make restitution in all cases if you have not already done so, undergo imprisonment in the custody of the Bureau of Corrections in the Commonwealth of Pennsylvania. It shall be a minimum of five-and-a-half and the maximum shall be thirteen years. Okay.

MS. ZACKS-GABRIEL: Thank you, your Honor.

THE COURT: And work through the probation where he is sent.

It is clearly established that the sentencing judge is without authority to direct that a term of imprisonment in excess of two years be served in a specific institution. Commonwealth ex rel. Black v. Superintendent, State Correctional Institution Graterford, 293 Pa. Super. 442, 439 A.2d 193 (1981); 42 Pa.C.S.A. § 9762. See also Commonwealth v. Maute, 263 Pa. Super. 220, 228, 397 A.2d 826, 830 (1979). Had appellant apprised counsel during their discussion concerning the guilty plea that he would not plead guilty if the sentence was to be served in certain specified institutions, counsel would have been ineffective had he either promised appellant that he would not be

[ 323 Pa. Super. Page 149]

    sentenced to those institutions or failed to advise appellant that the court was powerless to insure that the sentence would be served in a specific place of confinement. We are unable to determine whether appellant was induced to plead guilty in either fashion, since there was no hearing upon the petition. We must, therefore, remand to the Common Pleas Court so that an evidentiary hearing may be held to determine (1) whether appellant had instructed counsel that he would not plead guilty if the sentence was to be served in Rockview or Western State Penitentiary, and (2) whether counsel thereupon expressed the claimed promise or failed to advise appellant that the court could not provide any such guarantee. See Commonwealth v. Cofield, supra; Commonwealth v. Rusinko, supra; Commonwealth v. Peele, supra; Commonwealth v. Farnwalt, supra; Commonwealth v. McCall, supra.

Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

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