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COMMONWEALTH PENNSYLVANIA v. MICHAEL MOORE (06/01/87)

submitted: June 1, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL MOORE, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division, No. 8512748A.

COUNSEL

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Cirillo, President Judge, and Tamilia and Watkins, JJ.

Author: Tamilia

[ 365 Pa. Super. Page 68]

This is an appeal from judgment of sentence entered November 20, 1986 after appellant pled guilty to three counts of robbery.*fn1 Appellant was sentenced to five (5) to ten (10) years imprisonment, pursuant to the mandatory provisions of 42 Pa.C.S. § 9712, Sentences for offenses committed with firearms. Appellant then filed a motion to modify sentence which was denied by the court below. This in forma pauperis appeal followed.

Appellant now contends his guilty plea was involuntarily entered as a result of a defective plea colloquy which failed to inform him of possible sentences and did not establish his understanding of the charges against him. However, appellant, while represented by counsel, did not file a petition to withdraw the guilty plea either prior to or subsequent to sentencing. Appellant claims the issue of the voluntariness of his plea has not been waived as counsel was ineffective for "not ensuring a knowing and understanding plea" and for not filing a petition to withdraw the guilty plea. (Appellant's brief at 11.)

[ 365 Pa. Super. Page 69]

After an accused enters a guilty plea, only the voluntariness of the plea, the legality of the sentence imposed and the competency of counsel may be challenged on appeal. Commonwealth v. Moore, 321 Pa. Super. 442, 468 A.2d 791 (1983). "Ordinarily, a party on appeal who seeks to challenge a guilty plea must first have filed a motion to withdraw the plea in the court where it was entered." Commonwealth v. Weiss, 289 Pa. Super. 1, 4, 432 A.2d 1020, 1021 (1981). However, "the failure to file a petition to withdraw an unlawfully induced plea does not result in a waiver where such failure is due to ineffectiveness of counsel." Commonwealth v. Faust, 324 Pa. Super. 492, 497, 471 A.2d 1263, 1266 (1984). A claim of ineffectiveness is an extraordinary circumstance which prevents waiver of claims. Commonwealth v. Cofield, 310 Pa. Super. 356, 456 A.2d 650 (1983). Here, appellant's claim that counsel failed to file a motion to withdraw is a sufficient allegation of ineffectiveness to prevent waiver. Also, effectiveness of prior counsel is being raised at the earliest stage in the proceedings at which the counsel whose ineffectiveness, is being challenged no longer represents appellant. Commonwealth v. Broadwater, 330 Pa. Super. 234, 479 A.2d 526 (1984).

"Allegations of ineffectiveness in connection with a guilty plea will provide a basis of relief only if ineffectiveness caused an involuntary or unknowing plea." Commonwealth v. Owens, 321 Pa. Super. 122, 130, 467 A.2d 1159, 1163 (1983). In determining whether counsel rendered effective assistance we must first "ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit and, if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client." Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986).

We find the underlying issue of involuntariness of the plea has no arguable merit, and thus counsel cannot be

[ 365 Pa. Super. Page 70]

    deemed ineffective for failure to pursue a motion ...


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