Commonwealth v. Castner

SPAETH, Judge,

dissenting:

I dissent. The record does not indicate that appellant was apprised by his counsel or the lower court of his right to petition to withdraw his guilty plea, of his right to assistance of counsel in filing such a petition, and of the consequences of not filing a petition. Consequently, we cannot treat appellant’s failure to file a petition in the lower court as a voluntary and knowing waiver of his right to attack his guilty plea. Commonwealth v. McCusker, 245 Pa.Super. 402, 404, 369 A.2d 465, 466 (1976) (Spaeth, J., dissenting), allocatur allowed and case remanded per curiam, 245 Pa.Super. xlii (Sept. 21, 1977); Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978); Commonwealth v. Marzik, 255 Pa.Super. 500, 388 A.2d 340 (1978). I would remand to allow the appellant to file the proper post-plea motions.