Appeal from order of Superior Court, April T., 1965, No. 303, affirming order of Court of Common Pleas of Crawford County, Feb. T., 1965, No. 93, in case of Commonwealth ex rel. Gerald McKee v. Harry E. Russell, Warden.
Louis D. Musica, for appellant.
David P. Truax, Assistant District Attorney, and Paul D. Shafer, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell dissents. Mr. Justice Cohen took no part in the consideration or decision of this case.
This is an appeal from an order of the Superior Court, affirming*fn1 the order of the Court of Common
Pleas of Crawford County dismissing an action in habeas corpus after a hearing.
On February 8, 1960, the appellant, Gerald McKee, plead guilty to an indictment charging him with the crimes of burglary and larceny. On February 23, 1960, he was sentenced to imprisonment for an indeterminate term not to exceed six years. At the time of plea and sentence, he was not represented by counsel. He was paroled on May 3, 1962, but shortly thereafter was convicted of an additional larceny and given a new prison sentence. Under the law he was required to serve the unserved balance of the sentence imposed in 1960, before the computation of the new sentence began.
In the instant proceedings, McKee attacks the validity of the 1960 conviction and sentence, alleging that he was deprived of his constitutional right to the assistance of counsel during the proceedings. The hearing court concluded that this right had been intelligently waived. With this we cannot agree.
It is now established beyond argument that an indigent defendant*fn2 must be afforded the assistance of counsel at every critical stage of a criminal proceeding.*fn3 Commonwealth ex rel. Mullins v. Maroney, 428 Pa. 195, 236 A.2d 781 (1968); Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964). While this right may be waived, to be effective the relinquishment must be done intelligently and understandingly. Commonwealth ex rel. Gordon v. Myers, 424 Pa. 352, 227 A.2d 640 (1967). A finding of such a waiver is not to be made lightly. Moore v. Michigan, 355 U.S. 155, 78 S. Ct. 191 (1957); Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303
(1964). Where the record of the plea proceedings does not affirmatively show that the defendant was offered and declined counsel after appropriate inquiry by the court, the burden of proving an intelligent waiver is on the ...