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321 Pa. Super. 66

Commonwealth v. Heck

Superior Court of Pennsylvania

Decided November 10, 1983

Superior Court of Pennsylvania · decided 1983-11-10

Key passage — most relied on by later courts

““[although the right to an evidentiary hearing is not an absolute one, a hearing should be held on any issue which the PC[R]A court is not certain lacks merit. Commonwealth v. Rhodes, 272 Pa.Super. 546, 416 A.2d 1031 (1979). We will only remand for an evidentiary hearing if it is not possible to determine from the record whether the petition is frivolous and without support. Commonwealth v. Payton, 253 Pa.Super. 422 , 385 A.2d 410 (1978). Otherwise, we will affirm if our review of the record evinces that the claims are patently frivolous. Commonwealth v. Taylor, 491 Pa. 205 , 420 A.2d 413 (1980).””

quoted by 1 later decision, including 433 Pa. Super. 421 - Commonwealth v. Jones

““[t]he information gleaned from the record before us is insufficient to support a finding [by the trial court] of patently frivolous claims. We must, therefore remand the matter for an evidentiary hearing on appellant’s claim that ineffective assistance of counsel before and during his [no contest] plea hearing rendered his plea involuntary and unintelligent.””

quoted by 1 later decision, including 433 Pa. Super. 421 - Commonwealth v. Jones

Relies on 272 Pa. Super. 546 - Commonwealth v. Rhodes · Commonwealth v. Dowling · 253 Pa. Super. 422 - Commonwealth v. Payton

Good law ✅— No negative treatment on recordhow we know

Decided 1983-11-10

How this case has been cited

Cited by 5 later decisions — most recently May 2021

5 state decisions

2019831990200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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PER CURIAM:

¶1This appeal arises from the denial of appellant’s petition under the Post Conviction Hearing Act1 (hereinafter “PCHA”).

¶2Appellant pled guilty to statutory rape on September 13, 1976, and was sentenced four months later to a term of *68imprisonment of five (5) to ten (10) years. The direct appeal filed in this court resulted in our remand of the matter to the trial court on July 12, 1978, permitting the nunc pro tunc filing of a petition to withdraw the guilty plea. Commonwealth v. Heck, 258 Pa.Super. 602, 391 A.2d 683 (1978). However, no such petition was filed.

¶3Instead, a pro se PCHA petition was filed by appellant on November 21, 1978. Counsel was appointed and the petition was subsequently amended. The PCHA court dismissed the amended petition without a hearing on November 26, 1979. This court granted appellant’s petition for leave to file the instant appeal nunc pro tunc on April 28, 1980.

¶4Appellant argues herein that (1) his guilty plea was involuntarily and unintelligently made as his counsel rendered ineffective assistance before and during his guilty plea hearing; (2) his guilty plea colloquy did not meet the requirements of Pa.R.Crim.P. 319(a);2 and, (3) counsel was ineffective for failing to file a petition to withdraw the guilty plea when this court permitted such filing nunc pro tunc.

¶5A challenge to the validity of a guilty plea should be addressed in a motion before the sentencing court requesting permission to withdraw the plea. Commonwealth v. Dowling, 482 Pa. 608, 394 A.2d 488 (1978). However, if a guilty plea challenge is appended to an ineffective assistance of counsel allegation, the matter may properly be brought before the court in a PCHA petition. Commonwealth v. Herold, 246 Pa.Super. 170, 369 A.2d 866 (1977). We, therefore, need not reach appellant’s claim of ineffectiveness for failing to file a petition to withdraw his guilty plea as he has challenged that plea in his PCHA petition. *69Commonwealth v. Warren, 264 Pa.Super. 274, 399 A.2d 773 (1979).

¶6Although the right to an evidentiary hearing is not an absolute one, a hearing should be held on any issue which the PCHA court is not certain lacks merit. Commonwealth v. Rhodes, 272 Pa.Super. 546, 416 A.2d 1031 (1979). We will only remand for an evidentiary hearing if it is not possible to determine from the record whether the petition is frivolous and without support. Commonwealth v. Payton, 253 Pa.Super. 422, 385 A.2d 410 (1978). Otherwise, we will affirm if our review of the record evinces that the claims are patently frivolous. Commonwealth v. Taylor, 491 Pa. 205, 420 A.2d 413 (1980).

¶7The information gleaned from the record before us is insufficient to support a finding of patently frivolous claims. We must, therefore remand the matter for an evidentiary hearing on appellant’s claim that ineffective assistance of counsel before and during his guilty plea hearing rendered his plea involuntary and unintelligent.

¶8Remanded for an evidentiary hearing consistent with this opinion, and for completion of the record. Jurisdiction relinquished.

¶9. 42 Pa.C.S.A. § 9541 et seq.

¶10. We note, however, that the certified record before us includes the amended PCHA petition, but not the original which the amended petition references and incorporates, but does not reiterate. The amended petition contains no reference to this claim, thereby necessitating the hereinafter remand for completion of the record, inter alia.

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