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COMMONWEALTH PENNSYLVANIA v. TERRY LYNN PROCTOR (07/27/87)

submitted: July 27, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
TERRY LYNN PROCTOR, APPELLANT



Appeal from the Judgment of Sentence of February 18, 1987 in the Court of Common Pleas of Westmoreland County, Criminal Division, at No. 835 C 1986.

COUNSEL

Anthony W. DeBernardo, Jr., Ruffs Dale, for appellant.

Donna J. McClelland, Assistant District Attorney, Pittsburgh, for Com., appellee.

Cirillo, President Judge, and Hoffman and Hester, JJ.

Author: Hoffman

[ 369 Pa. Super. Page 226]

This appeal is from an order denying appellant's motion to withdraw his plea of nolo contendere*fn1 to charges of criminal solicitation and promoting prostitution. Appellant contends that trial counsel was ineffective because he failed to object to a defective plea colloquy.*fn2 For the reasons that follow, we remand the case for an evidentiary hearing to determine whether trial counsel had a reasonable basis for failing to object to the lower court's colloquy.

Appellant was charged with criminal solicitation and promoting prostitution, and was to have been tried with a co-defendant who had been charged with rape. Pursuant to a plea agreement, appellant pled nolo contendere to the

[ 369 Pa. Super. Page 227]

    charges. Appellant was sentenced to a one-to-four-year term of imprisonment. A timely motion to withdraw appellant's plea of nolo contendere was filed by trial counsel, and after a hearing, the motion was denied. New counsel was appointed, and this appeal followed.

Appellant contends that trial counsel was ineffective because he failed to object to a defective plea colloquy. The determination whether counsel rendered ineffective assistance is arrived at through a two-prong test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1982). Second, if appellant's claim does have arguable merit, we must determine whether "the course chosen by counsel had some reasonable basis designed to serve the best interests of the client." Commonwealth v. Buehl, supra (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967)).

If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel's ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 156, 527 A.2d 973, 975 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra, 515 Pa. at 161, 527 A.2d at 976-77. Under Strickland, to prove that counsel's ineffectiveness resulted in prejudice, an appellant must show that the error was "so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable." Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. at 2064.

In this case, there has been no evidentiary hearing on appellant's ineffectiveness claim. We ...


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