Opinion
Submitted March 15, 1971.
October 12, 1971.
Criminal Law — Practice — Appeals — Judgment of first degree murder following plea of guilty — PCHA proceeding — Remand of case to trial court to allow petitioner to file post-trial motions.
When it is determined that a defendant has not been properly advised of his right of appeal from a judgment of first degree murder following a plea of guilty to murder generally, the proper practice is for the PCHA court to terminate the hearing and remand the case to the trial court to allow the petitioner to file post-trial motions.
Before BELL, C. J., JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.
Appeal, No. 16, March T., 1971, from order of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1964, Nos. 103 and 104, in case of Commonwealth of Pennsylvania v. Robert L. Bricker. Case remanded.
Petition for post-conviction relief. Before ELLENBOGEN, P. J.
Petition denied, but petitioner allowed to appeal nunc pro tunc from original conviction. Petitioner appealed.
John J. Dean and Stephen I. Goldring, Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.
Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
After pleading guilty to murder generally, appellant was found guilty of first degree murder at a degree of guilt hearing held on July 22, 1964, and sentenced to life imprisonment by the Court of Common Pleas of Allegheny County. Appellant filed a Post Conviction Hearing Act (PCHA) petition on April 3, 1969, alleging, inter alia, that he had not intelligently and voluntarily waived his right to appeal. The hearing court found that appellant had, in fact, been denied his right of appeal, and ordered that appellant be permitted to file an appeal as though timely filed. The hearing court, however, went on to discuss the remaining issues raised in the petition and denied relief as to them.
Act of January 25, 1966, P. L. (1965) 1580, § 1 (as amended), 19 P. S. § 1180-1 et seq.
We have decided in Commonwealth v. Robinson, 442 Pa. 512, 515 n. 2, 276 A.2d 537 (1971), and Commonwealth v. Harris, 443 Pa. 279, 278 A.2d 159 (1971) that when it is determined that a defendant has not been properly advised of his right of appeal from a judgment of first degree murder following a plea of guilty to murder generally, the proper practice is for the PCHA court to terminate the hearing and remand the case to the trial court to allow the petitioner to file post-trial motions. See also, Commonwealth v. Lowery 438 Pa. 89, 263 A.2d 332 (1970); Commonwealth v. Faison, 437 Pa. 432, 436 n. 4, 264 A.2d 394 (1970).
Accordingly, we remand this case to the court below so that appellant, with the assistance of counsel, may file post-trial motions within 30 days from the date of the entry of this order. In the event that the court below dismisses such motions, appellant shall be permitted to file an appeal from the judgment of sentence as though timely filed.