Commonwealth v. Velasquez

357 A.2d 155, 238 Pa. Super. 368, 1976 Pa. Super. LEXIS 1715

• Court: Superior Court of Pennsylvania
• Decided: February 2, 1976
• Docket: Appeal, 964
• Status: Published

Opinion

Opinion by

Cercone, J.,

This appeal concerns the validity of appellant’s guilty plea to the charge of aggravated assault. 1 Appellant con tends that his guilty plea is invalid because he was not informed of the nature and elements of aggravated assault at the time he entered the plea. We need not address appellant’s contention at this time because appellant is not properly before this court. Appellant failed to file a petition to withdraw his guilty plea with the lower court before attacking the plea on direct appeal. See Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749, 750 (1975) ; Commonwealth v. Zakrzewski, 460 Pa. 528, n. 1, 333 A.2d 898, n. 1 (1975) ; and Commonwealth v. Starr, 450 Pa. 485, 488 (1973). This procedure has been made mandatory by this court in the case of Commonwealth v. Roberts, 237 Pa. Superior Ct. 336 (1975). However, because appellant’s appeal came before Commonwealth v. Roberts, supra, we will not consider his failure to file a petition to withdraw his guilty plea with the lower court as a waiver of such issue, but will instead remand to allow appellant to file a petition to withdraw his guilty plea nunc pro tunc.

Remanded with a procedendo.

Price, J., dissents for the reasons stated in Commonwealth v. Roberts, 237 Pa. Superior Ct. 336, 352 A.2d 140 (1975).

1 . Appellant also attempts to raise several other issues, hut when appellant pleaded guilty he waived his right to challenge anything but the legality of his sentence and the voluntariness of his plea. Commonwealth v. Greer, 457 Pa. 646, 647 (1974).