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November 10, 1964


Appeal, No. 10, May T., 1965, from order of Superior Court, March T., 1964, No. 30, affirming order of Court of Common Pleas of Dauphin County, June T., 1963, No. 580, in case of Commonwealth ex rel. John O'Lock v. Alfred T. Rundle, Warden. Orders reversed and new trial ordered.


John O'Lock, appellant, in propria persona.

Earl Richard Etzweiler, Assistant District Attorney, and Martin H. Lock, District Attorney, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 415 Pa. Page 517]


In 1944, John O'Lock was indicted on numerous bills charging various felonious offenses, including several burglaries. Without the assistance of counsel at any stage, he entered pleas of guilty to all charges and was sentenced to an aggregate of 20 1/2 to 41 years imprisonment.

In 1951, with the aid of counsel, O'Lock filed a petition for writ of habeas corpus, the basic allegation of which was that he was unrepresented by counsel at the time he entered his guilty pleas. After an extensive hearing in 1952, the Court of Common Pleas of Dauphin County denied the petition on the then applicable ground that since neither a capital offense nor prejudice to petitioner was involved, counsel was not required.

In 1963, without counsel, petitioner again sought the issuance of a writ of habeas corpus. This petition was substantially similar to the 1951 petition, again raising particularly lack of counsel at the 1944 guilty

[ 415 Pa. Page 518]

    pleas.*fn1 However, O'Lock was now able to cite Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963), in support of his contention that his lack of counsel constituted a deprivation of due process of law.

The Court of Common Pleas of Dauphin County denied the present petition without hearing. After acknowledging the similarity between the 1951 and 1963 petitions, the court concluded that the Gideon case was not to be applied retroactively.*fn2 It went on to hold that, even if the Gideon rule were to be so applied, the rule had no bearing on this case because the petitioner had entered pleas of guilty. The court further held that petitioner would have waived any right to counsel because a plea of guilty would act as an automatic waiver of counsel. Waiver was also found in the fact that petitioner did not request counsel, even though he had been before courts previously. Additionally, the court noted that, in its view, the lack of counsel did not result in prejudice to this petitioner.*fn3

[ 415 Pa. Page 519]

On appeal, the Superior Court affirmed per curiam. Our Court granted allocatur to consider the constitutional issue thus raised.

It is quite evident that the dispositions below were erroneous and that petitioner was not accorded his constitutional right to the assistance of counsel. A scrutiny of the complete record, including transcripts of the pleas and sentencing proceeding in 1944 and of the comprehensive 1952 habeas corpus hearing on the 1951 petition, reveals that to remand the petition for a hearing now is unnecessary. Only one result is indicated. The only proper disposition of this case on its merits appears so clearly from the record that appropriate relief should be granted promptly.

As the quoted portion of the opinion in the court below indicates, reliance was placed on this Court's view, expressed in Commonwealth ex rel. Craig v. Banmiller, 410 Pa. 584, 189 A.2d 875 (1963), that the Gideon decision had no retroactive application. We have subsequently held that our conclusion there was

[ 415 Pa. Page 520]

    incorrect.*fn4 Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964). Although, at present, there is no explicit holding by the Supreme Court of the United States on the matter,*fn5 it now appears that the Gideon principle is to be applied to convictions prior to the date of the decision in Gideon v. Wainwright. E.g., United States ex rel. Craig v. Myers, 329 F.2d 856 (3d Cir. 1964); United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir.); cert. denied 377 U.S. 998, 84 S.Ct. 1921 (1964); Geather v. State, 165 So.2d 229 (Fla. Dist. Ct. of App. 1964); In re Palmer, 371 Mich. 656, 124 N.W.2d 773 (1963); see the memorandum decisions of the Supreme Court of the United States, e.g., 372 U.S. 766-70, 773-77, 779-82, 83 S.Ct. 1103-07 (1963) (vacating state court judgments and remanding for further consideration in the light of Gideon).

Gideon interprets the Sixth Amendment guarantee of right to counsel, embodied as it is in the Fourteenth Amendment to the Constitution of the United States, as requiring that counsel be afforded to indigent defendants in the state courts.*fn6 And the ruling of White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050 (1963), is that counsel must be afforded at every critical stage where rights may be preserved or lost in the criminal proceedings. That petitioner was not prejudiced by the absence of counsel is immaterial. Ibid.

Attempts to limit Gideon to situations where counsel has been requested but refused, or where trial has been had on a plea of not guilty, are unsound. See

[ 415 Pa. Page 521]

"Bewildered by the mystifying language in which legal documents are cast, [the accused] ... will generally be incapable 'of determining for himself whether the indictment is good or bad.' Overwhelmed by the seemingly overpowering resources of the state, he may elect to plead guilty because he feels woefully ill-equipped to prepare his defense, 'even though he have a perfect one.' Unlike the defendant financially able to retain an attorney, he may be unaware of legal defects and complexities in the charges against him, and plead guilty to and offense which he has not committed." United States ex rel. Durocher v. LaVallee, supra, at 308.

"The right to counsel is not a right confined to representation during the trial on the merits." Moore v. Michigan, 355 U.S. 155, 160, 78 S.Ct. 191, 194 (1957).

We hold that our courts must apply the Gideon principle to a plea of guilty. United States ex rel. Durocher v. LaVallee, supra; United States ex rel. Craig v. Myers, supra, at 857-58; United States ex rel. Thomas v. Murphy, 227 F.Supp. 742, 744 (N.D.N.Y. 1964) (dictum); see Doughty v. Maxwell, supra; White v. Maryland, supra; Rice v. Olson, 324 U.S. 786, 788, 65 S.Ct. 989, 991 (1945); cf. Moore v. Michigan, supra; Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216 (1946).

This "constitutional right, of course, does not justify forcing counsel upon an accused who wants none." Moore v. Michigan, supra, at 161, 78 S.Ct. at 195; Carter v. Illinois, supra. But a finding of waiver may not be made lightly. e.g., Moore v. Michigan, supra; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938); Commonwealth ex rel. McCray v. Rundle, supra.

Indeed, in this case the Commonwealth alleged

[ 415 Pa. Page 523]

    waiver in its return to the petition for a writ,*fn8 and the court below believed that the right to counsel had been waived.*fn9 Where, as here, the conviction record does not affirmatively show the accused was offered counsel and declined counsel after appropriate inquiry by the court, the burden may not be placed upon the accused to show that he did not intelligently and understandingly waive counsel. That burden rests upon the Commonwealth. Carnley v. Cochran, 369 U.S. 506, 516-517, 82 S.Ct. 884, 890 (1962). As we understand the prevailing principles of waiver,*fn10 neither the Commonwealth's conclusory allegations nor its proof at the 1952 hearing measure up to its burden. Nor is the court's determination on this issue (adopting, in essence, the Commonwealth's allegations*fn11 ) sufficient to meet the applicable standards.

The court below, in concluding that if petitioner had a right to counsel he had waived such right, misconstrued

[ 415 Pa. Page 524]

    the nature of an intelligent waiver. For support, the court quotes from petitioner's testimony at the earlier habeas corpus hearing which reveals only that O'Lock knew that he had waived a jury trial by entering his pleas on the bills of indictment. The only other supporting statement, also made at that hearing, was that petitioner may have subconsciously known that he could have procured counsel.*fn12 In our view, this nebulous testimony is insufficient to support a finding that the accused in 1944 understood his constitutional right to either counsel of his own choosing or, if indigent, to court appointed counsel and knowing that right, understandingly and intelligently waived it. At the 1944 hearing, the absence of counsel was not discussed. O'Lock was not asked if he desired counsel and did not request counsel.

Contrary to the suggestion in the opinion below, failure to request counsel may not, in itself, be construed as a waiver. E.g., Carnley v. Cochran, supra, at 513, 82 S.Ct. at 889. Moreover, the implication from the opinion below, that by the mere entry of a plea of guilty petitioner waived counsel, is erroneous. E.g., Rice v. Olson, 324 U.S. 786, 788-89, 65 S.Ct. 989,

[ 415 Pa. Page 525990]

-91 (1945). Since the record of the pleas proceeding and the record as developed on the habeas corpus proceeding cannot support a finding of intelligent and understanding waiver, we must hold that there was none.*fn13

We take this opportunity to re-emphasize what we noted in Commonwealth ex rel. McCray v. Rundle, supra, concerning some of the factors to be considered in determining whether the accused intelligently and understandingly waived his right to counsel. Our courts must be extremely cautious in finding waiver of a constitutional right so fundamental and so pervasive as the right to counsel. The nature and extent of the record inquiry required to establish that an accused refused the offer of counsel, or otherwise waived his constitutional right to the assistance of counsel, is dictated by the particular factual circumstances presented and the accused's awareness of his position before the court.

Depending upon the particular circumstances of the case, the record must show, among other things, that the accused knew the nature of the crime charged against him, was advised or was aware of his right to counsel, and, if indigent or otherwise unable to secure counsel, that he was advised or was aware of his right

[ 415 Pa. Page 526]

    to have assigned counsel*fn14 but that the accused intelligently and understandingly rejected the services of counsel. However, where the accused enters a plea of guilty to a complicated offense,*fn15 or where he pleads not guilty and is faced with an involved criminal charge and the attending trial circumstances tend to make the whole proceeding complex or obscure to the unrepresented layman,*fn16 the nature and completeness of the examination discussed in McCray*fn17 is required.*fn18

[ 415 Pa. Page 527]

The proper and efficient administration of criminal justice can be best achieved when the facts regarding waiver clearly appear in the record assembled during the conviction proceedings. It is expected that this will be the future practice.

When the Commonwealth charges a citizen with a transgression against its laws and musters its forces to establish the guilt of an accused, our courts must be zealous in assuring that the defendant is given every constitutional opportunity to meet the accusations lodged against him. Every judge understands the complexity of our criminal law. Every judge is aware that untutored laymen may well be unable to fully comprehend the effect of a plea of guilty. Every judge realizes that an accused, even one who has been before the courts before, often feels awed by the proceedings in which he is involved. Only counsel may adequately protect the interests of the criminal defendant. Such counsel, if desired, must be afforded. The constitution demands no less.*fn19


The order of the Superior Court is reversed. The order of the Court of Common Pleas of Dauphin County is reversed and the record is remanded to that court with directions to issue the writ and grant a new trial.

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