Criminal Law — Practice — Guilty plea — Validity of guilty plea improperly challenged for first time on appeal — Validity of guilty plea may be raised in petition under Post Conviction Hearing Act.
1. An appellate court will not review the issue of the validity of a guilty plea on a direct appeal from sentence imposed after revocation of probation where the issue was not raised in the court below.
2. An appellate court will not review for the first time on appeal issues not properly raised and preserved in the trial court.
3. A defendant does not waive the issue of validity of a guilty plea by failing to raise it at a violation of probation hearing.
4. A defendant may raise the issue of the validity of a guilty plea in a petition under the Post Conviction Hearing Act.
Argued November 12, 1974.
OPINION BY JACOBS, J., February 27, 1975:
On December 4, 1972, appellant pleaded guilty to possession of a small amount of heroin. He received a sentence of three years probation. No direct appeal was taken. The terms of probation were allegedly violated and on June 10, 1974, a hearing was held. After testimony was received, the lower court revoked appellant's probation and sentenced him to one year of imprisonment.
In this appeal from the sentence of the lower court after revocation of probation, appellant questions whether his plea of guilty in 1972 was knowing and voluntary. For relief appellant requests us to vacate the judgment and grant him a new trial. After reviewing the record we find that the validity of the 1972 plea was not challenged at the hearing in the court below. The only issues raised there were whether probation had been violated and the permissible range of sentencing upon revocation of probation. The lower court was not requested to nor did it on its own motion consider the issue of the validity of the 1972 guilty plea.
Under these circumstances we decline to review the merits of this issue. It is well established that "we will not review for the first time on appeal issues not properly raised and preserved in the trial court." Commonwealth v. Reid, 458 Pa. 357, 359, 326 A.2d 267, 268 (1974). However, we do not find that appellant waived the issue by failing to raise it at the violation of probation hearing. That proceeding was merely a narrow inquiry instituted by the Commonwealth to determine whether appellant violated the terms of his probation. See Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973). The validity of the 1972 guilty plea was not an issue to be raised at that proceeding.
If the appellant desires to raise the guilty plea issue he may do so in a petition under the Post Conviction Hearing Act. See Act of Jan. 25, 1966, P.L. (1965) 1580, § 3(c) (7), 19 P. S. § 1180-3 (c) (7) (Supp. 1974-75).
Sentence affirmed.