Commonwealth v. Roberts

*340Dissenting Opinion by

Pbice, J.:

As the majority correctly observes, the sole question before us on this appeal is appellant’s contention that his guilty pleas were not voluntarily and understanding^ entered because the colloquies were inadequate under the Ingram standards. The other questions raised in appellant’s argument are clearly waived and merit no discussion.

However, the record before us is more than sufficient to support a holding that the colloquies1 conformed in every respect to the guidelines which have been established.

Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975), was decided on March 18, 1975. The pleas and sentences here involved occurred in January, 1975 and May, 1975. Because of delays recently encountered in the printing of, and hence notice of, appellate court opinions, I am not willing to hold appellant’s procedure in this appeal a mistake. Historically, we have considered an appeal in a guilty plea case to properly raise 1) the validity of the plea and 2) the validity of the sentence. Commonwealth v. McNeill, 453 Pa. 102, 305 A.2d 51 (1973); Commonwealth v. Dillinger, 440 Pa. 336, 269 A.2d 505 (1970). It is certainly clear in Commonwealth v. Lee, supra, and in Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975), that where the only challenge to the proceeding is directed to the validity of the guilty plea itself, the proper procedure is first to file with the lower court a petition to withdraw the plea. It is equally clear that in Lee, supra, and Zakrzewski, supra, where the record is sufficient, that the Supreme Court would, and did, consider the merits of the appeal.

We are, to my view, therefore faced with a choice of either deciding this appeal on its merits or finding a waiver for failure to follow mandated procedure.

*341Because of the confusion noted in the majority-opinion concerning the correct procedure to be employed and because of the notice problem previously mentioned, it would be improper to decide this appeal on the waiver issue.

As Justice Pomeroy further noted in Lee, supra,: "Because of the uncertainty which has prevailed as to the appropriate method by which to attack a guilty plea, as well as the absence of a definitive procedural rule on the subject, we will consider the merits of appellant’s claim. Further, because the appellant’s assignment of error goes only to the sufficiency of the colloquy and thus can be determined from the record itself, no purpose would now be furthered by remanding to the court below.” 460 Pa. at 327 n.l, 333 A.2d at 750 n.l.

I would, therefore, affirm the judgments of sentence.

Jacobs, J., joins in this dissenting opinion.

. Three in number, covering the two appeals here involved and the four indictments included therein.