Commonwealth v. Dowling ( 1978 )

NIX, Justice,

dissenting.

I disagree with the majority’s conclusion that because appellant did not petition the lower court to withdraw his guilty plea, the adequacy of the guilty plea colloquy is an issue which has not been preserved for our review. I therefore dissent.

I do not share the majority view that this Court’s decision in Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975) removed all doubt that challenges to guilty plea colloquies would be considered waived on appeal if an appellant had not petitioned the lower court to withdraw the plea. The footnote in Lee upon which the majority relies conceded that the law was unclear as to the proper procedural method to be used for raising and preserving such challenges. Id. at 327n.*, 333 A.2d at 750n.*. That same footnote also conveyed at least the implicit suggestion that a “definitive procedural rule” might be necessary and forthcoming in order to clarify this point of practice. Id. In fact, that is precisely how this Court ultimately resolved the uncertainty. See Pa.R.Crim.P. 321 (effective September 1, 1977). Far from clarifying the law on this point, the Lee footnote clouded the area by suggesting that a challenge to the sufficiency of the colloquy, which could be resolved by resort to the Record, would be considered by this Court even in the absence of a petition to withdraw. See Commonwealth v. Lee, supra. In light of the murky state of the law existing at the time appellant entered his plea, I cannot conclude that counsel should have been on notice that a petition to withdraw the plea was a procedural prerequisite to a challenge of the plea’s validity on appeal. In my judgment, appellant’s contentions should have been considered on the merits.

EAGEN, C. J., joins this dissenting opinion.