November 10, 1964
COMMONWEALTH EX REL. GOODFELLOW, APPELLANT,
Appeal, No. 31, Jan. T., 1965, from order of Superior Court, October T., 1963, No. 340, affirming order of Court of Common Pleas of Chester County, Miscellaneous No. 12114, 1963, in case of Commonwealth ex rel. Thomas F. Goodfellow v. Alfred T. Rundle, Superintendent. Orders reversed and new trial ordered.
Thomas F. Goodfellow, appellant, in propria persona.
Thomas A. Pitt, Jr., Assistant District Attorney, and A. Alfred Delduco, District Attorney, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
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OPINION BY MR. JUSTICE ROBERTS
Thomas Goodfellow, without counsel, was sentenced in 1959 to imprisonment for prison breach and larceny. The sentences followed pleas of guilty to both charges. In 1963, Goodfellow sought a writ of habeas corpus alleging that absence of counsel at the 1959 guilty pleas and sentencings deprived him of his liberty without due process of law. The court of common pleas denied the writ after argument, but without a hearing.*fn1 The denial was appealed to the Superior Court. That Court, believing the issues were of "vital importance to the Commonwealth," certified the matter to this Court under the appropriate statute.*fn2
Along with the certification, the Superior Court appended an opinion which sought to lay down broad guidelines for our courts in reviewing habeas corpus petitions grounded on lack of counsel.*fn3 203 Pa. Superior Ct. 419, 201 A.2d 615 (1964). Three of the judges
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were at that time of the view that Gideon was not to be applied retroactively,*fn4 but assuming that it was and that it was to be applied to guilty pleas, petitioner, by alleging only that no counsel was offered to him, had not alleged sufficient facts to entitle him to a writ or to a hearing on the petition. These judges would have affirmed the denial of the writ. One of the judges did not join in this opinion, but he also relieved that the order below should be affirmed. The remaining three judges would have remanded the case for a hearing at which the relator would have the burden of establishing his indigency or other inability to procure counsel at the time of the guilty pleas.
The case, so certified, is now before us.*fn5 Although the objective of a guideline opinion for the assistance of trial courts may be generally commendable, that mission in this complex and developing area was not here achieved. This Court's recent decisions in Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964), and Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964), indicate that much of what was said in the guideline opinion filed in the Superior Court does not express the current permissible constitutional doctrines to be applied to habeas corpus proceedings. Our reading of Carnley
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sentences imposed is absolutely devoid of any reference to counsel.*fn7
Under our constitutional system, the accused,*fn8 regardless of financial status, is guaranteed the right to the assistance of counsel, either counsel of his own choosing or, if indigent or otherwise unable to secure counsel, counsel assigned by the court. See Gideon v. Wainwright, supra. Moreover, the conviction or hearing record must show that the accused was advised or was aware of his right to counsel. Commonwealth ex rel. O'Lock v. Rundle, supra. In the absence of such a showing, indigency is not in issue. Unless waived, if counsel is not afforded, due process is violated. This record is utterly without suggestion or a single element of waiver. Waiver may not be found from a mere plea of guilty, Rice v. Olson, supra, from the appearance of the accused without counsel, ibid., or from failure to request counsel, Carnley v. Cochran, supra. Nor may it be presumed from a silent record. Ibid.
Since there has been no allegation by the Commonwealth of waiver and since the record does not, in any way, sustain a finding of waiver, we must hold that petitioner was unconstitutionally denied the assistance of counsel. In light of our conclusions, it is unnecessary to remand the matter to the court of common pleas for a hearing on the question of waiver, indigency
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or any other matter. See Carnley v. Cochran, supra, at 516-17, 82 S.Ct. at 890.
Our disposition is without prejudice to relator's right to withdraw his petition in the court of common pleas should he desire to do so.*fn9
The order of the Court of Common Pleas of Chester County is reversed and the record is remanded to that court with directions to issue the writ and to grant new trials.