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UNITED STATES EX REL. SMITH v. HENDRICK

October 31, 1966

UNITED STATES of America ex rel. James I. SMITH
v.
Edward J. HENDRICK



The opinion of the court was delivered by: LORD, III

 Relator seeks a writ of habeas corpus on the asserted grounds that, (1) his plea of guilty was not knowingly and understandingly entered; and (2) he was not represented by counsel at the time of re-sentencing.

 I. PLEA OF GUILTY

 Relator was indicted for conspiracy, robbery, assault and battery, and carrying a concealed weapon. At his non-jury trial, he was represented by Herbert G. Hardin, Esquire, who was an experienced criminal lawyer and an old friend of relator's family who knew relator personally. Smith had specifically requested that Hardin represent him, and the latter agreed to do so without compensation. Before trial, relator discussed the case with counsel.

 The Commonwealth presented considerable evidence against Smith, which his attorney tried, rather unsuccessfully, to rebut and discredit by vigorous cross-examination. After the prosecution rested, Mr. Hardin addressed the court, indicating that the plea to robbery and conspiracy would be changed to "guilty," but that defendant would demur to the other bills of indictment. The court thereupon reviewed the various bills and sustained the demurrers.

 Relator maintains that he did not realize that his attorney was changing his pleas and that he was, in fact, totally ignorant of the proceedings which surrounded him. Because it is undeniably the constitutional right of every defendant to be informed of the charges against him and to be permitted to enter a guilty plea only with a full recognition of the nature and consequences of his voluntary act, United States ex rel. McDonald v. Commonwealth, 343 F.2d 447 (C.A.3, 1965); United States ex rel. Slebodnik v. Commonwealth, 343 F.2d 605 (C.A.3, 1965), we granted a hearing in order to dispose of the contentions on their merits.

 Initially, however, we are confronted by relator's argument that the state record itself must affirmatively reveal the requisite notice to the defendant and the latter's knowledgable response, and that it would thus be improper for this court, sitting as fact-finder in a habeas corpus proceeding, to attempt to reconstruct the circumstances surrounding the plea. We cannot agree. See United States ex rel. Smith v. Myers, 250 F. Supp. 460 (E.D.Pa.1966); United States ex rel. Hairston v. Myers, 237 F. Supp. 472 (E.D.Pa.1965), cert. denied Hairston v. Myers, 381 U.S. 943, 85 S. Ct. 1781, 14 L. Ed. 2d 706 (1965).

 Certainly, our task in habeas corpus hearings would be considerably simplified if the state trial record showed affirmatively that the requisite warnings and explanation of the charge, defenses, penalty and rights to a jury trial were given before the plea was accepted. But state courts are not constitutionally bound to follow this procedure when defendant was represented by counsel, as long as the evidence adduced at the habeas hearing, including the state record as a whole, *fn1" discloses the requisite voluntariness and knowledge.

 Relator relies on United States ex rel. McDonald v. Commonwealth, 343 F.2d 447 (C.A.3, 1965), and United States ex rel. Slebodnik v. Commonwealth, 343 F.2d 605 (C.A.3, 1965) in support of his position that the silence of the state record demand his release. We do not so read those cases. In McDonald the relator had been without counsel in the state court. As Judge Freedman pointed out, "it would be impossible to expect of him the detached, impersonal judgment which is the unique contribution of a professional advisor." 343 F.2d at page 451. The court continued: "In such a case, * * *" the comprehension of the accused of the nature of the charge the defenses and the consequence of the plea, "should appear on the record at the time the plea of guilty is entered." Ibid. As we read the decision it is an inevitable product of the justifiable skepticism which necessarily attends the review of any critical criminal proceeding where defendant has acted without benefit of counsel. We do not have here "such a case," for defendant was represented by counsel of his own choice. Furthermore, as we pointed out in United States ex rel. Smith v. Myers, 250 F. Supp. 460 at page 462, (E.D.Pa.1966), the language in McDonald sounds "more cautionary than mandatory."

 Slebodnick did not turn at all on whether the state record must show that the plea was free and intelligent. Rather, it holds that what was admittedly done, as shown by the state record, was inadequate to advise an uncounselled defendant.

 Moreover, we think that relator places too much reliance on Commonwealth ex rel. Barnosky v. Maroney, 414 Pa. 161 at page 165, 199 A.2d 424 at page 426 (1964), where Mr. Justice Roberts said:

 
"* * * It would be wise for the court to make particular inquiry as to defendant's knowledge of the nature of the charge, * * * and of the general consequences of his plea. It is desirable to have such matters made known to the defendant by the court even though he be represented by counsel. * * *"

 That the above dicta is certainly not mandatory when defendant is represented by counsel is confirmed by the language in Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 85, 202 A.2d 299, 302 (1964):

 
"Complaint is also made that the trial court failed to inquire into the defendant's apprehension of the charges and failed to inform him of the nature and consequences of his pleas of guilty. Where an accused is represented by counsel, there is no obligation on the part of the court to make ...

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