Appeal from order of Superior Court affirming order of Court of Common Pleas of Indiana County, March T., 1965, No. 401, in case of Commonwealth ex rel. Richard J. Fairman v. A. C. Cavell, Superintendent.
R. Stanton Wettick, Jr., for appellant.
W. Thomas Malcolm, District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Chief Justice Bell.
The appellant, Richard J. Fairman, on January 2, 1961, plead guilty without counsel to district attorney's bills of indictment charging burglary, larceny and receiving stolen goods. He was sentenced to a term of imprisonment under which he is presently confined.
On February 8, 1965, he instituted an action in habeas corpus which, after hearing, the trial court dismissed. On appeal, the Superior Court affirmed. We granted allocatur.
The Sixth Amendment to the Constitution of the United States, which is applicable to criminal proceedings in state courts, requires that the accused be given the assistance of counsel at every critical stage of a criminal prosecution: Gideon v. Wainwright, 372 U.S. 335 (1963); White v. Maryland, 373 U.S. 59 (1963); and Commonwealth v. Sliva, 415 Pa. 537, 204 A.2d 455 (1964). The ruling of Gideon is retroactive and the hearing on a guilty plea is a "critical stage" in the criminal prosecution: Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964).
While counsel need not be "forced" on an accused and this right may be effectively waived, a judicial finding of such may not be made lightly: Johnson v. Page 141} Zerbst, 304 U.S. 458 (1938). Further, where the trial or plea proceedings record fails to affirmatively show that the accused was offered counsel and declined such assistance, the burden is upon the Commonwealth to show that such assistance was intelligently and understandingly waived: Carnley v. Cochran, 369 U.S. 506 (1962), and Commonwealth ex rel. O'Lock v. Rundle, supra.
In the instant case, no transcript was made of the plea proceedings. However, the court records disclose, that on the district attorney's bills of indictment, Fairman signed the following printed statement, "And now to wit: The second day of January, A.D. 1961, the defendant pleads guilty, waiving grand jury action and right to counsel."
At the habeas corpus hearing, Fairman testified, that on January 2, 1961, he was indigent; that at no time before or during the plea proceedings was he advised of his right to be represented by counsel, or did anyone offer to appoint counsel to assist him. The record discloses that the only testimony offered in refutation was that of the district attorney at the time the guilty pleas were entered. The district attorney testified that he did not remember the Fairman case specifically, but in every case it was his practice to advise an uncounseled defendant of his right to have an attorney, and if he were without means to secure such assistance, the court would appoint counsel to represent him.
We are not persuaded that the Commonwealth met its burden of proving that the right to the assistance of counsel was effectively waived. The signed written statement of the guilty plea, including a waiver of counsel and presentment to the grand jury, is not in itself sufficient to establish an intelligent and understanding waiver. ...