Commonwealth v. Wentz

CERCONE, Judge: Appellant was convicted of the offense of the sale of phenobarbital tablets by a jury in Dauphin County. The day after the jury returned its verdict, appellant entered a plea of guilty on four other charges. The plea was accepted and appellant was sentenced. Two years later, appellant filed a petition pro se under the Post Conviction Hearing Act.1 The petition alleged that his guilty plea was involuntarily induced and requested a new trial and the appointment of counsel. The lower court appointed counsel but dismissed appellant’s petition solely on the basis of the Commonwealth’s answer to it. From this dismissal appellant appeals. The substantive argument in the briefs before us deals with the guilty plea colloquy and the court’s acceptance of the plea. However, we feel both briefs omitted discussion of the important issue of waiver. Appellant’s PCHA petition merely states that “no direct appeal was [68] taken.” It does not allege that the right to a direct appeal was ever denied or obstructed in any manner. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Commonwealth v. Norman, 447 Pa. 217, 285 A.2d 523 (1971). This omission precludes our review of any issue that could have been dealt with on direct appeal since the language of the PCHA reads: “(b) For the purposes of this Act, an issue is waived if: (1) The petitioner knowingly and understanding^ failed to raise it' and it could have been raised . on appeal . . . ” 19 P.S. § 1180-4. Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974). The colloquy prior to acceptance of the guilty plea and sentencing on the record before us clearly informs the appellant of his right to take an appeal from the acceptance of the guilty plea and the limited grounds on which he could base such an appeal. Appellant was represented by counsel at the colloquy and there is no indication on the record that he was displeased with his trial counsel nor is there any allegation of ineffectiveness raised on this appeal which might have discouraged him from taking a direct appeal. Nor is there any allegation that the PCHA petition was in effect “uncounselled” despite the appointment of counsel. See Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975) ; Commonwealth v. Scott, 469 Pa. 381, 366 A.2d 225 (1976) . From the language of the PCHA and the cases on waiver we find the issue of the voluntariness of the guilty plea was waived by appellant’s failure to raise the issue on direct appeal which precludes us from addressing it now. Order of the lower court affirmed. HOFFMAN, J., did not participate in the consideration or decision of this case. Footnotes [1] Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq.; 19 P.S. § 1180-1 et seq. (Supp. 1978-79).