Opinion
March 17, 1970.
May 21, 1970.
Criminal Law — Practice — Post-conviction relief — Averment in petition of all grounds of attack upon plea of guilty — Amendment of petition filed by unschooled prisoner — Extensive colloquy conducted before plea.
Petitioner filed a P.C.H.A. petition, alleging only that he was denied his right of appeal, without indicating what grounds he would pursue on appeal. After argument by counsel, but without hearing petitioner, the court below denied the petition.
It was Held that the court below should have granted leave to amend the petition so that the prisoner could have alleged the errors he would have alleged had he been granted an appeal.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 23, Oct. T., 1970, from order of Court of Common Pleas of Montgomery County, Feb. T., 1969, No. 466, in case of Commonwealth of Pennsylvania v. James Patrick Hackett. Order affirmed without prejudice to appellant's filing an amended petition.
Petition for post-conviction relief.
Order entered dismissing petition, opinion by LOWE, J. Defendant appealed.
Richard M. Lovenwirth, Assistant Public Defender, for appellant.
Stewart J. Greenleaf and Paul W. Tressler, Assistant District Attorneys, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Submitted March 17, 1970.
Appellant pleaded guilty to indictments charging him with burglary, larceny, receiving stolen goods, and conspiracy to commit these offenses. The trial judge conducted an extensive colloquy with appellant with regard to his plea. Following sentence, appellant took no appeal therefrom.
Appellant filed a Post Conviction Hearing Act petition, alleging only that he was denied his right of appeal, without indicating what grounds he would pursue on appeal. After argument by counsel, but without hearing appellant, the court denied the petition.
Appellant's right to appeal should not be the question before this Court. When a prisoner files a PCHA petition, following judgment of sentence on a guilty plea to a crime other than felonious homicide, all grounds of attack upon his plea must be made in the PCHA petition. Commonwealth v. Lowery, 438 Pa. 89, 263 A.2d 332 (1970); Commonwealth v. Naylor, 437 Pa. 193, 262 A.2d 146 (1970). An unschooled prisoner cannot be expected to be aware of such a requirement. Hence, the court should have granted leave to amend the petition, so that the prisoner could allege the errors he would have alleged had he been granted an appeal. Post Conviction Hearing Act, § 7, Act of January 25, 1966, P.L. (1965) 1580, 19 P. S. § 1180-7 (Supp. 1970).
The fact that an extensive colloquy was conducted before the plea does not foreclose appellant from alleging errors that may lie beneath the surface of the record. Many factors may have influenced appellant which even an extensive colloquy could not ascertain. Cf. Commonwealth v. Abel, 438 Pa. 423, 265 A.2d 374 (1970).
The order of the PCHA court denying appellant a right to appeal nunc pro tunc is affirmed without prejudice to appellant's filing an amended PCHA petition attacking his plea on the merits.