Commonwealth v. Heeman

433 A.2d 477, 495 Pa. 277, 1981 Pa. LEXIS 942

• Court: Supreme Court of Pennsylvania
• Decided: August 18, 1981
• Docket: 1310
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

On December 2, 1976, the Court of Common Pleas of Luzerne County found appellant Willis Heeman guilty of charges of criminal solicitation and corruption of a minor, following a guilty plea proceeding at which appellant was represented by privately retained counsel. Appellant was subsequently sentenced to concurrent terms of imprisonment of five to ten years on the former charge and two and one-half to five years on the latter.

With the assistance of new, appointed counsel, appellant took an appeal to the Superior Court, claiming that his plea of guilty had not been entered voluntarily and that no colloquy had preceded it. Relying on Commonwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140 (1975), and Commonwealth v. Hughes, 257 Pa.Super. 258, 390 A.2d 811 (1978), a majority of the Superior Court held that appellant had waived his claims because he had failed to file a petition with the trial court for permission to withdraw his plea and had “asserted no valid explanation” for his failure to do so. Commonwealth v. Heeman, 260 Pa.Super. 79, 81, 393 A.2d 1021, 1021 (1978).

Judge Spaeth dissented, joined by Judge Cercone.¹ The dissent pointed out that this Court had previously reversed a similar determination of waiver by the Superior Court in Commonwealth v. McCusker, 245 Pa.Super. 402, 369 A.2d 465 (1976), rev’d, 485 Pa. 313, 402 A.2d 500 (1977), and that the Superior Court was bound to follow — and in other cases had indeed followed — this Court’s holding in McCusker. See Commonwealth v. Marzik, 255 Pa.Super. 500, 388 A.2d 340 (1978); Commonwealth v. Curry, 254 Pa.Super. 444, 386 A.2d 32 (1978). But see Commonwealth v. Hughes, supra. We granted allowance of appeal.

In McCusker this Court held that where the record reveals that an appellant was not informed of his right to file post-verdict motions following the acceptance of his plea of nolo contendere, a challenge to the plea is not waived by appellant’s failure to file such motions. We determined that the proper remedy is vacation of the judgment of sentence and remand of the record to permit the filing of post-verdict motions as if timely filed. Accord, Commonwealth v. Brandon, 485 Pa. 215, 401 A.2d 735 (1979).

As this Court observed in Commonwealth v. Cathey, 477 Pa. 446, 449-50, 384 A.2d 589, 590 (1978):

“The right to appeal is a personal right which a defendant may relinquish only through a knowing, intelligent and voluntary waiver. Fay v. Noia, 372 U.S. 371, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Commonwealth v. Jones, 447 Pa. 228, 286 A.2d 892 (1971); Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 107, 233 A.2d 220, 221-22 (1967); ABA Project on Standards Relating to Criminal Appeals § 2:2(b) (Approved Draft, 1970). To assure that any waiver of this right is knowing and intelligent, this Court has promulgated Pa.R.Crim.P. 1123(c) and 1405(b), which ensure that defendants are informed not only that they have a right to appeal, but also that any issue they wish to raise on appeal must be raised first in post-verdict motions. Thus these rules ensure that defendants are informed of how to exercise their right to appeal effectively.”

Here, nothing in the record indicates that appellant was ever informed of his right to file post-guilty-plea motions or of the consequences of failing to do so. Rather, appellant was told only that he had a right to appeal within thirty days, a right which he timely exercised. Thus, appellant is clearly entitled to the same relief which this Court afforded to appellants McCusker and Brandon and which the Superior Court has afforded to the appellants in Commonwealth v. Curry, supra, Commonwealth v. Marzik, supra, Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978), and Commonwealth v. Phillips, 264 Pa.Super. 174, 399 A.2d 723 (1979).²

Accordingly, the judgment of sentence is vacated and the record remanded to permit appellant to file a motion to withdraw his guilty plea as if timely filed.³

FLAHERTY, J., files a concurring opinion, joined by LARSEN and KAUFFMAN, JJ.

1 . Watkins, former P. J., and Hoffman, J., did not participate in the consideration or decision of this case.

2 . To the extent that the Superior Court’s decision in Commonwealth v. Hughes, supra, is inconsistent with the above cases, it is expressly disapproved.

3 . The record reflects the entry of a plea of guilty. The Concurring Opinion suggests that such a plea was not entered. This, of course, is one of the issues for the consideration of the trial court on remand.