Commonwealth v. Ashby
Commonwealth v. Ashby
Dissenting Opinion
Appellant filed his fourth PCHA petition on August 2, 1979.
Reviewing the fourth petition, I do not find that such petition alleged that prior PCHA counsel was ineffective. While appellant may have checked off the block, in the standardized petition, questioning counsel’s effectiveness, nowhere in the petition is there any indication that he was challenging PCHA’s counsel’s stewardship. Appellant’s claim was not properly presented in his fourth petition and neither the trial court or this court should consider it. Commonwealth v. Carrier, 494 Pa. 305 n. 3, 431 A.2d 271, 273,
I respectfully dissent.
. Appellant also filed: a PCHA petition on May 14, 1976 which was treated as an amendment to the May 13, 1976 petition; he also filed a motion to withdraw his guilty plea, nunc pro tunc under date of June 18, 1979.
Opinion of the Court
This is an appeal from the lower court’s denial of appellant’s Post Conviction Hearing Act (PCHA) petition. Because we are unable to determine the merits of appellant’s contentions on the record before us, we must vacate the order of the lower court and remand for an evidentiary hearing.
On June 9, 1975, appellant entered counselled guilty pleas to four counts each of burglary and theft by unlawful taking. No direct appeal was taken. On May 13, 1976, appellant filed a pro se PCHA petition challenging the voluntariness of his pleas and the effectiveness of his counsel.
On this appeal, appellant contends that his PCHA counsel was ineffective in failing to: (1) amend his petition to challenge the lack of a factual basis for the guilty plea; (2) challenge the sentencing colloquy when the lower court had not informed appellant of his rights to withdraw his guilty plea and appeal; and (3) advise appellant to appeal from the denial of PCHA relief. Although these claims
Order vacated and case remanded for proceedings consistent with this opinion.
. A second PCHA petition, filed May 14, 1976, was treated as an amendment to the May 13 petition.
. Appellant has preserved his objections to PCHA counsel’s effectiveness because this is his first opportunity with independent counsel to raise them. Commonwealth v. Triplett, 476 Pa. 83, 88 n.5, 381 A.2d 877, 880 n.5 (1977); Commonwealth v. Johnson, 298 Pa.Superior Ct. 493, 498, 444 A.2d 1291, 1293 (1982); Commonwealth v. Oliver, 280 Pa.Superior Ct. 274, 277 n.1, 421 A.2d 719, 721 n.1 (1980).
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. William ASHBY
- Cited By
- 1 case
- Status
- Published