Commonwealth v. Roberts , 237 Pa. Super. 336 ( 1975 )

Opinion by

Cercone, J.,

This appeal concerns the validity of appellant’s guilty pleas to four separate indictments. Appellant contends that his guilty pleas were not voluntarily and understandingly entered because the colloquies conducted prior to the court’s acceptance of his pleas were inadequate in that they failed to advise him of various rights. See Commonwealth v. Ingram, 455 Pa. 198 (1974); Pa. R. Crim. P. Rule 319 (a)¡ and comments thereto. We need not address appellant’s contention at this time because appellant is not properly before this court.

Appellant has made the common, and up to now condoned, mistake of attacking the validity of a guilty plea on direct appeal without first filing a petition to withdraw the plea with the court to which the plea was made. This procedural error was pointed out by Justice Pomeroy in Commonwealth v. Lee, 460 Pa. 324, 327, 333 A.2d 749, 750 (1975) wherein he stated:

“This appeal was not preceded by the filing of a petition for withdrawal of the guilty plea nor by post-trial motions. We reiterate that, in cases such as the one at bar where the only challenge to the proceedings in the trial court is directed to the validity of the guilty plea itself, the proper procedure is first to file with that court a petition to withdraw the plea. See Commonwealth v. Zakrzewski, 460 Pa. 528, n. 1, 333 A.2d 898, n. 1, [filed March 18, 1975]; Commonwealth v. Starr, 450 Pa. 485, 488, 301 A.2d 592, 594 (1973). It is for the court which accepted the plea to consider iand correct, in the first instance, any error which may have been committed.”¹

The purpose behind this procedure can best be illustrated by looking to the area of post-verdict motions. See Pa. R. Crim. P., Rule 1123 and comments thereto. Pennsylvania appellate courts have recently taken the uncompromising position that when an issue is not raised in post-verdict motions it will not be considered on appeal. See Commonwealth v. Coleman, 458 Pa. 324 (1974); Commonwealth v. Williams, 458 Pa. 319 (1974); and, Commonwealth v. Miller, 232 Pa. Superior Ct. 171 (1975). The reason for this position is that “[t]he swift and orderly administration of criminal justice requires that lower courts be given the opportunity to rectify their errors before they are considered on appeal.” Commonwealth v. Reid, 458 Pa. 357, 358 (1974).

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. The enforce-rríént of this procedure will give the court which accepted the plea the opportunity to allow the withdrawal of the plea if it was in fact not voluntarily and understanding^ made. If the defendant remains unsatisfied with the lower court’s disposition of his^petition to withdraw his guilty plea, then at that point the issue would be properly preserved and ripe for appellate review. Strict adherence to this procedure could, indeed, preclude an otherwise costly, time consuming, and unnecessary appeal to this court.

It might be argued that to have the very court which accepted an inadequate guilty plea review a petition to withdraw the same plea is a useless gesture because that court would not have accepted the plea in the first instance unless it was of the opinion that the plea was voluntary. However, the same argument applies to all issues raised in post-verdict motions, and the underlying purpose of this procedure is that it would place with the court below the opportunity and responsibility to make the initial determination of reviewing whether the guilty plea colloquy complied with the clear mandates of the Supreme Court of Pennsylvania. See Commonwealth v. Ingram, supra; Pa. R. Crim. P. Rule 319 (a) and comments thereto. If proceedings based on defendant’s petition to withdraw the plea shows that the colloquy is in fact inadequate, then the lower court will allow the plea to be withdrawn. There is simply no reason why the lower court cannot review its own colloquy to determine whether the required elements were included therein.

Because prior to this case the generally condoned procedure was to attack a guilty plea on direct appeal without first filing a motion to withdraw, this case is hereby remanded to the trial court to allow appellant to file a motion to withdraw his guilty plea nunc pro tunc.

1 . While the Supreme Court volunteered to consider the colloquies in Lee, supra, and Zakrzewski, supra, on the merits, the Court in these cases indicated that the better procedure would be for the defendant to file in the lower court a petition to withdraw the guilty plea before the issue could properly be considered on the appellate level. Due to the overwhelming frequency with which the Superior Court is confronted with this issue, we deem it necessary to now require strict compliance with this procedure.