Appeal from the PCHA September 30, 1986 in the Court of Common Pleas of Lehigh County, Criminal No. 1138, 1139 of 1976.
Bruce W. Weida, Allentown, for appellant.
Emil W. Kantra, II, Assistant District Attorney, Allentown, for Com., appellee.
Cirillo, President Judge, and Olszewski and Hoffman, JJ.
[ 366 Pa. Super. Page 276]
This is an appeal from an order denying appellant's Post-Conviction Hearing Act (PCHA)*fn1 petition following his
[ 366 Pa. Super. Page 277]
guilty plea to third-degree murder, robbery and conspiracy. Appellant claims that trial counsel was ineffective: (1) for failing to advise him of the right to appeal the trial court's "implicit denial" of his motion in arrest of judgment and for failing to effect such an appeal; and (2) for failing to pursue appellant's petition for reconsideration of sentence and for failing to advise appellant of his right to appeal the sentence imposed by the trial court. Appellant asserts that because of counsel's ineffectiveness, appellate review of his sentence was effectively foreclosed. We agree with appellant that counsel's performance was deficient. We, consequently, have reviewed the attack on the sentence imposed and conclude that the claim is meritless. Accordingly, the judgment of sentence is affirmed.
In 1976, appellant was convicted by a jury of second-degree murder. Motions in arrest of judgment and for a new trial were timely filed and, by order dated March 7, 1978, the motion for a new trial was granted. That order, however, failed to mention and dispose of the motion in arrest of judgment. It is not questioned that appellant's trial counsel failed to advise the appellant of his right to appeal the "implicit denial" of that motion. Consequently, the appeal period expired on April 9, 1978, with no appeal having been taken.
Appellant's trial counsel was replaced by court order dated April 11, 1978. New counsel thereafter filed an appeal nunc pro tunc from the "denial" of appellant's motion in arrest of judgment. That appeal was denied by the Pennsylvania Supreme Court on May 10, 1978, after indicating that the order was interlocutory. It was understood that the appeal would be reviewed after a final order was entered by the trial court.
Thereafter, the Commonwealth and appellant entered into plea bargaining negotiations and, on June 7, 1978, a plea agreement was entered. An extensive guilty plea colloquy was conducted during which appellant agreed, inter alia, to withdraw his appeal to the Supreme Court. The court
[ 366 Pa. Super. Page 278]
accepted the plea of guilty to charges of third ...