VAN der VOORT, Judge:
On June 17, 1976, appellant pleaded guilty to charges of theft and receiving stolen property; he was placed on two years probation. Appellant was arrested again in 1977 and was charged with a number of offenses. A “Gagnon II hearing” (probation revocation hearing) was held on October [337]*3375, 1977. Appellant admitted to the violation, his probation was revoked and he was sentenced to IIV2 to 23 months incarceration. Subsequently appellant also pleaded guilty on March 6 and 8, 1978 and April 10, 19781 to numerous counts of burglary and other related charges. On June 23, 1978, after a presentence investigation had been conducted appellant was sentenced to terms of two to ten years on each of six counts of burglary to run concurrently to each other and consecutive to the previously imposed sentence, two concurrent terms of ten years probation on the attempted burglary charges to commence upon his release and sentence was suspended on the three counts of conspiracy and one count of possession of an instrument of crime. Appellant failed to file any direct appeals. He did however file five Post Conviction Hearing Act petitions. The lower court held a hearing on the petitions and found against appellant. Appellant here appeals from the order denying him relief.
Appellant raises three issues:
I. Was the lower court’s denial of an appeal nunc pro tunc improper when the probation revocation court failed to advise appellant of his right to appeal;
II. Did the lower court err in denying appellant a right to withdraw his guilty pleas nunc pro tunc when the sentencing court failed to advise him of such rights; and
III. Was appellant denied his right to appeal by prison officials who allegedly obstructed his access to law libraries and legal clinics.
The Commonwealth concedes that the lower court failed on two occasions to adequately advise appellant of his appeal rights. In particular the Gagnon II hearing judge failed to advise the appellant at the time of sentencing of his right to [338]*338appeal, as required by Pa.R.Crim.P. Rule 1405(b).2 Appellant also was not informed after the court sentenced him on June 23, 1978 of his right to challenge his guilty pleas pursuant to Rule 1405(c).3
I. The Commonwealth contends that even though appellant was not advised of his right to appeal the probation revocation, he was not prejudiced since the issue was cognizable in the P.C.H.A. proceedings. To place the present discussion in the proper perspective, appellant admitted violating his probation. So while appellant is correct in arguing that a defendant who is not advised of his appellate rights and is effectively deprived of an appeal should be granted an appeal nunc pro tunc;4 the present situation must be resolved in the framework of an appeal from a guilty plea entered at a probation revocation hearing.5 When challenging a guilty plea a defendant may only challenge: the jurisdiction of the court; the lawfulness of [339]*339the sentence; the validity of the plea; and the competency of counsel. Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974) and Commonwealth v. Miller, 246 Pa.Super. 392, 371 A.2d 896 (1977). The appeal of a probation revocation is also limited.
“The review in an appeal from judgment of sentence which has been imposed following revocation of probation is ‘limited to the validity of the revocation proceedings and the legality of the final judgment of sentence’. [Commonwealth v. Gilmore, 465 Pa. 202, 205] 348 A.2d [425] at 427 [(1975)]”. Commonwealth v. Sylvanus, 246 Pa.Super. 93, 369 A.2d 826 (1976).
The present case is a hybrid appeal: an appeal from a P.C.H.A. order concerning a Gagnon II hearing wherein appellant admitted violating the terms of his probation. Appellant argues that his admission to the violation was involuntary because his counsel incorrectly informed him that he would receive a sentence of three to six months and not a sentence of eleven months to twenty-three months which was imposed. Appellant in essence is claiming his admission was involuntary because of counsel’s ineffectiveness.
To simplify the present situation we will resolve the issue as if it arose from a guilty plea instead of a Gagnon II plea.6 When viewed in this perspective the present situation is analogous to the situation in Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977). In Alston the defendant had pleaded guilty, did not take a direct appeal but later filed a P.C.H.A. petition. There it was claimed that the plea was not knowingly and voluntarily made. Relief was denied by the lower court. On appeal Alston argued that the hearing court should have allowed an appeal nunc pro tunc. The Commonwealth conceded that the defendant was not advised of his right to appeal. The Supreme Court there held that:
[340]*340“Appellant is not entitled to relief .... Because he was convicted . . . after a plea, the only issues he could contest on appeal would be the jurisdiction of the court, the validity of his plea and the lawfulness of his sentence. (Citation deleted). Appellant was given the opportunity to raise these issues in the post conviction proceedings and challenged only the validity of his plea. The same legal standards were applicable to the post-conviction proceeding as would apply on appeal, and the hearing court applied the correct standards. Therefore, failure to allow appeal as though timely filed was not prejudicial.” (Citations deleted). Id., 473 Pa. at 47, 373 A.2d 741.
The lower court here allowed appellant full rein to present whatever testimony he wished. He attempted to show counsel was ineffective at the revocation hearing and that the plea was not voluntary. The hearing judge found no merit to appellant’s contention. We find that the record of the P.C.H.A. hearing supports the judge’s ruling.
“Because those issues are fully cognizable in collateral proceedings, a denial of a defendant’s right to appeal is nonprejudicial and standing alone does not afford a basis for relief.” (Citations deleted).
Commonwealth v. Ward, 442 Pa. 351, 357, 275 A.2d 92 (1971).7 See also Commonwealth v. Miller, 246 Pa.Super. 392, 371 A.2d 896 (1977).
II. The Commonwealth contends that even though the court failed to advise appellant at the time of sentencing, June 23, 1978, of his right to challenge his guilty plea, the appellant was allowed to question the validity of the plea before the P.C.H.A. court. The prosecution also notes that appellant was advised of his rights to withdraw the plea on March 8, 1978, when he first entered such plea.
[341]
Free access — add to your briefcase to read the full text and ask questions with AI
VAN der VOORT, Judge:
On June 17, 1976, appellant pleaded guilty to charges of theft and receiving stolen property; he was placed on two years probation. Appellant was arrested again in 1977 and was charged with a number of offenses. A “Gagnon II hearing” (probation revocation hearing) was held on October [337]*3375, 1977. Appellant admitted to the violation, his probation was revoked and he was sentenced to IIV2 to 23 months incarceration. Subsequently appellant also pleaded guilty on March 6 and 8, 1978 and April 10, 19781 to numerous counts of burglary and other related charges. On June 23, 1978, after a presentence investigation had been conducted appellant was sentenced to terms of two to ten years on each of six counts of burglary to run concurrently to each other and consecutive to the previously imposed sentence, two concurrent terms of ten years probation on the attempted burglary charges to commence upon his release and sentence was suspended on the three counts of conspiracy and one count of possession of an instrument of crime. Appellant failed to file any direct appeals. He did however file five Post Conviction Hearing Act petitions. The lower court held a hearing on the petitions and found against appellant. Appellant here appeals from the order denying him relief.
Appellant raises three issues:
I. Was the lower court’s denial of an appeal nunc pro tunc improper when the probation revocation court failed to advise appellant of his right to appeal;
II. Did the lower court err in denying appellant a right to withdraw his guilty pleas nunc pro tunc when the sentencing court failed to advise him of such rights; and
III. Was appellant denied his right to appeal by prison officials who allegedly obstructed his access to law libraries and legal clinics.
The Commonwealth concedes that the lower court failed on two occasions to adequately advise appellant of his appeal rights. In particular the Gagnon II hearing judge failed to advise the appellant at the time of sentencing of his right to [338]*338appeal, as required by Pa.R.Crim.P. Rule 1405(b).2 Appellant also was not informed after the court sentenced him on June 23, 1978 of his right to challenge his guilty pleas pursuant to Rule 1405(c).3
I. The Commonwealth contends that even though appellant was not advised of his right to appeal the probation revocation, he was not prejudiced since the issue was cognizable in the P.C.H.A. proceedings. To place the present discussion in the proper perspective, appellant admitted violating his probation. So while appellant is correct in arguing that a defendant who is not advised of his appellate rights and is effectively deprived of an appeal should be granted an appeal nunc pro tunc;4 the present situation must be resolved in the framework of an appeal from a guilty plea entered at a probation revocation hearing.5 When challenging a guilty plea a defendant may only challenge: the jurisdiction of the court; the lawfulness of [339]*339the sentence; the validity of the plea; and the competency of counsel. Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974) and Commonwealth v. Miller, 246 Pa.Super. 392, 371 A.2d 896 (1977). The appeal of a probation revocation is also limited.
“The review in an appeal from judgment of sentence which has been imposed following revocation of probation is ‘limited to the validity of the revocation proceedings and the legality of the final judgment of sentence’. [Commonwealth v. Gilmore, 465 Pa. 202, 205] 348 A.2d [425] at 427 [(1975)]”. Commonwealth v. Sylvanus, 246 Pa.Super. 93, 369 A.2d 826 (1976).
The present case is a hybrid appeal: an appeal from a P.C.H.A. order concerning a Gagnon II hearing wherein appellant admitted violating the terms of his probation. Appellant argues that his admission to the violation was involuntary because his counsel incorrectly informed him that he would receive a sentence of three to six months and not a sentence of eleven months to twenty-three months which was imposed. Appellant in essence is claiming his admission was involuntary because of counsel’s ineffectiveness.
To simplify the present situation we will resolve the issue as if it arose from a guilty plea instead of a Gagnon II plea.6 When viewed in this perspective the present situation is analogous to the situation in Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977). In Alston the defendant had pleaded guilty, did not take a direct appeal but later filed a P.C.H.A. petition. There it was claimed that the plea was not knowingly and voluntarily made. Relief was denied by the lower court. On appeal Alston argued that the hearing court should have allowed an appeal nunc pro tunc. The Commonwealth conceded that the defendant was not advised of his right to appeal. The Supreme Court there held that:
[340]*340“Appellant is not entitled to relief .... Because he was convicted . . . after a plea, the only issues he could contest on appeal would be the jurisdiction of the court, the validity of his plea and the lawfulness of his sentence. (Citation deleted). Appellant was given the opportunity to raise these issues in the post conviction proceedings and challenged only the validity of his plea. The same legal standards were applicable to the post-conviction proceeding as would apply on appeal, and the hearing court applied the correct standards. Therefore, failure to allow appeal as though timely filed was not prejudicial.” (Citations deleted). Id., 473 Pa. at 47, 373 A.2d 741.
The lower court here allowed appellant full rein to present whatever testimony he wished. He attempted to show counsel was ineffective at the revocation hearing and that the plea was not voluntary. The hearing judge found no merit to appellant’s contention. We find that the record of the P.C.H.A. hearing supports the judge’s ruling.
“Because those issues are fully cognizable in collateral proceedings, a denial of a defendant’s right to appeal is nonprejudicial and standing alone does not afford a basis for relief.” (Citations deleted).
Commonwealth v. Ward, 442 Pa. 351, 357, 275 A.2d 92 (1971).7 See also Commonwealth v. Miller, 246 Pa.Super. 392, 371 A.2d 896 (1977).
II. The Commonwealth contends that even though the court failed to advise appellant at the time of sentencing, June 23, 1978, of his right to challenge his guilty plea, the appellant was allowed to question the validity of the plea before the P.C.H.A. court. The prosecution also notes that appellant was advised of his rights to withdraw the plea on March 8, 1978, when he first entered such plea.
[341]*341Prior cases appear to support appellant’s contention that failure to advise him of his right requires the granting of allowance to file a motion nunc pro tunc to withdraw his plea. In Commonwealth v. Beatty, 474 Pa. 104, 376 A.2d 994 (1977) the Supreme Court held that a direct appeal was not the proper method for attacking a guilty plea. The court held:
“It is now settled that the proper procedure for attacking a guilty plea following the entry of judgment of sentence is to file with the trial court which accepted the plea a petition to withdraw the plea.” At 474 Pa. 108, 376 A.2d 994.
The court in Commonwealth v. Brandon, 485 Pa. 215, 401 A.2d 735 (1979) found the defendant had not been informed that he had a right to withdraw his plea; the court remanded allowing Brandon to file nunc pro tunc a motion to withdraw his plea.8
Appellant here requests the Brandon remedy of remanding. However, appellant has already had the benefits of a remand would provide. The P.C.H.A. court reviewed appellants guilty plea. Appellant argued that his plea was a result of his counsel’s incompetency. Specifically appellant claimed that his lawyer failed to attempt to have evidence suppressed and the case dismissed under Rule 1100, Pa.R. Crim.P. The post conviction court found appellant’s contentions were without merit. We agree. To now allow appellant to file a motion nunc pro tunc to withdraw his plea would result in a duplication of the P.C.H.A. hearing. Appellant was allowed to present whatever arguments he wished,9 he was not prejudiced by the court’s consideration [342]*342of such argument in the form of a P.C.H.A. petition instead of a hearing on a motion to withdraw his plea.
III. As a result of our other holdings in this case, we see no need to delve into appellants claim that prison officials interfered with his ability to file an appeal. Appellant has accomplished by collateral appeal what he claims prison officials prohibited him from doing on a direct appeal.
Order affirmed.10
SPAETH, J, files a dissenting opinion.