Summary
In Commonwealth v. Cooke, 244 Pa. Super. 320, 368 A.2d 741 (1976), an appellant who failed to file a petition with the lower court to withdraw his guilty plea, filed a direct appeal with our court, also challenging the adequacy of the colloquy.
Summary of this case from Com. v. SmithOpinion
Argued June 15, 1976.
Decided December 15, 1976.
Appeal from the Court of Common Pleas, Criminal Division, Tioga County, No. 75-206, Kemp, President Judge
Michael A. Etkin, Philadelphia, with him Marshall Frumer, Philadelphia, for appellant.
Rudolph J. Van der Hiel, Dist. Atty., Wellsboro, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
The appellant, David Joseph Cooke, files the instant direct appeal following his guilty plea to a charge of burglary. The guilty plea was made at trial on December 10, 1975. On December 30, 1975, appellant was sentenced and on January 30, 1976 he filed the instant direct appeal to our Court.
The sole argument on this direct appeal is that the colloquy conducted by the court was insufficient to establish a knowing and intelligent guilty plea by appellant. The appellant never preceded this appeal by the filing of a petition to withdraw his guilty plea nor by any other post-trial motions before our lower court. He neglected such required steps despite the clear advance notice in appellate cases that such action was necessary to adequately preserve guilty plea claims for appellate review on direct appeal. See Commonwealth v. Lee, 460 Pa. 324, 327, 333 A.2d 749, 750 (filed March 18, 1975) and Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (filed December 1, 1975). Under such circumstances, appellant must be deemed to have waived his right to raise issues associated with the challenge to his guilty plea. See Commonwealth v. McCusker, 245 Pa.Super. ___, 369 A.2d 465 (1976).
Affirmed.
CERCONE and SPAETH, JJ., dissent.