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COMMONWEALTH PENNSYLVANIA v. BARRY ALAN PULLING (10/14/83)

submitted: October 14, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
BARRY ALAN PULLING, APPELLANT



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

COUNSEL

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 ...


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