Opinion
December 16, 1975.
April 22, 1976.
Criminal Law — Practice — Guilty plea — Alleged ineffective assistance of counsel — Alleged failure of counsel to advise defendant that intoxication could have negated element of offense — Requirement that petition to withdraw guilty plea be initially filed in court below.
1. In this case, the defendant entered a guilty plea. On appeal, he alleged ineffective assistance of counsel on the ground that he was not advised that intoxication could have negated an element of the offense. It was Held that the matter would be remanded to the court below as the defendant had not filed a petition to withdraw his guilty plea in the court below.
2. In order to raise an issue on appeal of the proper entry of a guilty plea, it is necessary that the defendant first file a petition to withdraw the guilty plea in the court below.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 1505, Oct. T., 1975, from order of Court of Common Pleas of Northampton County, Oct. T., 1974, No. 280, in case of Commonwealth of Pennsylvania v. Vincent Santiago. Case remanded with a procedendo.
Indictment charging defendant with armed robbery. Before PALMER, P.J.
Plea of guilty entered and judgment of sentence entered thereon. Defendant appealed.
Robert M. Davison, Assistant Public Defender, for appellant. Allan B. Goodman, Assistant District Attorney, and Charles H. Spaziani, District Attorney, for Commonwealth, appellee.
PRICE, J., dissented.
Submitted December 16, 1975.
This is an appeal from appellant's guilty plea to the charge of robbery. Appellant contends that he was denied effective assistance of counsel in the entering of his plea because he was not informed by counsel that intoxication could have negated an element of the offense. See Section 308 of the Crimes Code. Although it does not appear on the record, appellant contends that his counsel was aware that appellant was intoxicated at the time of the offense. The Commonwealth, rather than address the merits of appellant's claim, argues, citing Commonwealth v. Starr, 450 Pa. 485, 487-488 (1973), that the trial court, not this court, is the proper forum to determine, in the first instance, whether appellant should be permitted to withdraw his plea. We agree. As was stated in Commonwealth v. Roberts, 237 Pa. Super. 336, 338-339 (1975): "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." In the instant case this procedure is particularly well suited in that appellant's claim cannot be resolved without determining first whether counsel was aware of appellant's intoxication and second whether counsel's actions in light of knowledge of the intoxication had any reasonable basis designed to effectuate his client's interest. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604 (1967). To answer these questions appellant's counsel must be heard. This can be done by the trial court as part of its consideration of appellant's petition to withdraw his guilty plea.
Act of December 6, 1972, P.L. 1482, § 1, 18 Pa. C.S. § 3701.
Act of December 6, 1972, P.L. 1482, § 1, 18 Pa. C.S. § 308.
Remanded with a procedendo.
PRICE, J., dissents.