Commonwealth v. Hankins

396 A.2d 389, 261 Pa. Super. 264, 1978 Pa. Super. LEXIS 4270

• Court: Superior Court of Pennsylvania
• Decided: December 22, 1978
• Docket: 2363
• Status: Published

Opinions

PRICE, Judge:

This appeal arises from denial in the court below of appellant’s request for relief under the Post Conviction Hearing Act (P.C.H.A.).¹ Appellant pleaded guilty to charges of robbery² and criminal conspiracy³ and was sentenced on December 12, 1975. No post-trial motions were filed and no direct appeal was taken. In September, 1976, appellant filed his P.C.H.A. petition which challenged the knowing and voluntary aspects of his plea. We find appellant’s claims to be waived, and therefore affirm the order of the court below.

To qualify for P.C.H.A. relief, a petitioner must establish, inter alia, that “the error resulting in his conviction and sentence has not been finally litigated or waived.”⁴ An issue is deemed waived if:

“(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and

(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.” 19 P.S. § 1180 — 4(b)(1), (2).

Appellant’s contentions are, without exception, addressed to the validity of his plea, and as such would clearly be cognizable on direct appeal. Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. Hill, 457 Pa. 1, 319 A.2d 886 (1974). It is firmly established that a challenge to the validity of one’s guilty plea must be addressed by a petition to withdraw the plea in the trial court. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Commonwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140 (1975). See also Pa.R.Crim.P. 321, effective September 1, 1977. Appellant’s claims are therefore waived for purposes of P.C.H.A. relief unless he has established extraordinary circumstances justifying his failure to appeal the plea directly.

Appellant alleges that counsel performed ineffectively at the guilty plea colloquy and that because the terms of a plea bargain were not put on the record, appellant misunderstood the potential sentence he would receive. Neither of these assertions explains his failure to directly appeal from the plea. Appellant finally contends that there was no showing on the record that he was entitled to be provided with counsel for appeal purposes, and that this constitutes an “extraordinary circumstance.” In fact, this contention was not raised in appellant’s P.C.H.A. petition, nor presented at the hearing thereon, and therefore, will not be considered by this court on appeal.

When a petitioner does not allege that he was denied his right to a direct appeal, a challenge to a guilty plea as not knowingly and intelligently entered is waived under the Post Conviction Hearing Act. Commonwealth v. Nero, 250 Pa.Super. 17, 378 A.2d 430 (1977). Appellant has not so argued, and is accordingly denied relief.

The order of the court below is affirmed.

HESTER, J., files a dissenting opinion. HOFFMAN, J., did not participate in the consideration or decision of this case.

1 . The Act of January 25, 1966, P.L. (1965) 1580, § 1 (19 P.S. § 1180-1) et seq.

2 . 18 Pa.C.S. § 3701.

3 . 18 Pa.C.S. § 903.

4 . The act of January 25, 1966, P.L. (1965) 1580, § 3(d) [19 P.S. § 1180-3(d)].