Commonwealth v. Harrsch

CERCONE, Judge: This is an appeal from appellant’s plea of guilty to numerous charges. Appellant attempts to attack his plea on the grounds that he was denied effective assistance of counsel in the entering of his plea, that his plea was not voluntarily and understandingly entered, and that his plea was not properly entered on the record. We need not address appellant’s contentions at this time [413] 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 his 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, 301 A.2d 592 (1973). This procedure has been made mandatory by this court in the case of Commonwealth v. Roberts, 237 Pa.Super. 336, 338-9, 352 A.2d 140, 141 (1975) where we stated, “The same principles which mandate that issues not raised in post-verdict motions will not be considered on direct appeal mandate that an attack on a guilty plea on direct appeal must be preceded by the filing of a petition to withdraw such plea with the court below.” Because appellant’s appeal was taken before Commonwealth v. Roberts, supra, we will not consider his failure to file a petition to withdraw his guilty plea with the lower court a waiver of that issue. Commonwealth v. Velasquez, 238 Pa.Super. 368, 357 A.2d 155 (1976). Instead we will remand to allow appellant to file a petition to withdraw his guilty plea nunc pro tunc. This procedure is particularly well suited to this case because there is a claim of ineffective assistance of counsel. Commonwealth v. Santiago, 240 Pa.Super. 63, 361 A.2d 732 (1976). In connection with appellant’s petition to withdraw his plea his allegedly ineffective counsel can be given an opportunity to explain why his actions had a reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Remanded with a procedendo. SPAETH, J., files a concurring opinion. VAN der VOORT, J., files a dissenting opinion. PRICE, J., absent.