Opinion
March 8, 1971.
April 15, 1971.
Criminal Law — Practice — Plea of guilty — Questions which may be raised on direct appeal or in a collateral proceeding — Denial of right to appeal — Procedure of PCHA court — Grant of direct appeal nunc pro tunc unnecessary.
Commonwealth v. Rosenberger, 218 Pa. Super. 95, followed.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 1822, Oct. T., 1970, from order of Court of Common Pleas of Franklin County, No. 406 of Oyer and Terminer 1967, in case of Commonwealth of Pennsylvania v. Merle Arthur Neil. Order reversed as to appeal rights nunc pro tunc.
Petition for post-conviction relief. Before KELLER, J.
Order entered granting leave to file appeal, nunc pro tunc. Defendant appealed.
David C. Cleaver, and Black and Davison, for appellant.
David S. Dickey, Assistant District Attorney, for Commonwealth, appellee.
Submitted March 8, 1971.
This case represents the same procedural problem presented in Commonwealth v. Rosenberger, 218 Pa. Super. 95, 279 A.2d 308 (1971). The appellant was convicted on the basis of his plea of guilty to various criminal charges. He filed a petition under the Post Conviction Hearing Act (Act of January 25, 1966, P.L. (1965) 1580, 19 P. S. § 1180.1 et seq.) and a hearing was held. The court properly rejected appellant's other claims of error, but found that he had never been properly advised of his right to appeal. Therefore, the court granted appeal rights nunc pro tunc. This was improper under Commonwealth v. Lowery, 438 Pa. 89, 263 A.2d 332 (1970), for the reasons stated in our opinion in Commonwealth v. Rosenberger, supra.
We therefore reverse that part of the hearing court's decision which grants appellant appeal rights nunc pro tunc.