Commonwealth v. Cimaszewski

339 A.2d 95, 234 Pa. Super. 299, 1975 Pa. Super. LEXIS 1530

• Court: Superior Court of Pennsylvania
• Decided: April 22, 1975
• Docket: Appeal, 834
• Status: Published

Opinions

Opinion by

Van der Voort, J.,

Appeal is taken from an Order denying, without a hearing, appellant’s petition for post-conviction relief.¹ At trial on August 28, 1972, appellant pled guilty to charges of burglary, aggravated robbery, and aggravated assault and battery. Sentencing followed on November 21, 1972. On August 16, 1973, appellant filed his petition for post-conviction relief, which petition he augmented by an amended petition.

The applicable statute, supra, provides:

“If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the 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.” (§1180-9).

Thus, “[t]he right to an evidentiary hearing on PCHA review is not absolute.” Commonwealth v. Hayden, 224 , 307 A.2d 389, 390 (1973). It is our duty to carefully study the record, appellant’s petition for relief, and the Commonwealth’s answer.

Appellant’s first argument is that his trial counsel was ineffective.² He now alleges that the attorney’s advice to plead guilty was against appellant’s better judgment. Further, appellant argues that his trial counsel promised him a lesser sentence if he pled guilty, together with credit for time served and an allowance to attend a treatment center. The record shows that appellant, in response to his attorney’s questions, understood the charges against him, the maximum sentences therefor, his absolute right to jury trial, and the presumption of innocence applicable to him. But the record is silent as to appellant’s present claims, which, if true, would entitle appellant to a hearing. See Commonwealth v. Young, 218 Pa. Superior Ct. 272, 275 A.2d 866 (1971); and Commonwealth v. Rush, 212 Pa. Superior Ct. 437, 243 A.2d 159 (1968).

Although statements were made at trial which are contrary to appellant’s present argument regarding ineffective counsel, we find that the record does not necessarily refute and make invalid and frivolous appellant’s claim as to ineffectiveness of counsel, and recognizing that this issue is eligible for presentation at the post-conviction stage (see §1180-3 of the Act, supra), we remand for hearing the issue of ineffective counsel.³

Appellant’s second argument is a rather general one alluding to his guilty plea as having been unlawfully induced, which he alleges lends itself better to post-conviction treatment. But for an unexplained reason, the direct appeal was discontinued.

We are confident that some claims relative to unlawfully induced guilty plea are properly raisable at direct appeal. Commonwealth v. Rosenberger, 218 Pa. Superior Ct. 95, 279 A.2d 308 (1971). However, on the state of the present record, we are unable to determine whether or not appellant knowingly and intelligently waived his rights to pursue such claims on direct appeal when he inexplicably withdrew his direct appeal. The PCHA hearing court must resolve the question of knowing and intelligent waiver of direct appeal rights. If there was a knowing and intelligent waiver of these rights, any claim of unlawfully induced guilty plea, cognizable on direct appeal, was waived. See Commonwealth v. Johnson, 433 Pa. 582, 252 A.2d 641 (1969). Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). If no such waiver of direct appeal rights is found, then all of appellant’s claims as to unlawfully induced guilty plea must be considered by the PCHA hearing court.

Bemanded with a procedendo in accordance with this opinion.

1 . Petition was presented pursuant to the Post Conviction Hearing Act, Act of 1966, January 25, P.L. (1965) 1580, §1 et seq., 19 P.S. §1180-1 et seq.

2 . Following trial, Attorney A. A. Guarino was dismissed, and Attorney William F. Coyle replaced him as appellant’s counsel.

3 . Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), holds that ineffectiveness of counsel may be'raised in a PCHA proceeding in three (3) instances, one of which is “where the petitioner is represented on appeal by new counsel, but the grounds upon which the claim of ineffective assistance are based do not appear in the trial record”, 460 Pa. at 100, 331 A.2d at 438. This is the situation in the instant case.