Appeal from order of Superior Court, April T., 1967, No. 333, affirming order of Court of Oyer and Terminer of Clarion County, May T., 1961, Nos. 4 and 5, and Aug. T., 1961, No. 6, in case of Commonwealth of Pennsylvania v. Glenn L. Blose.
Glenn L. Blose, appellant, in propria persona.
Merle E. Wiser, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen would vacate the order below and remand for a hearing. Mr. Chief Justice Bell dissents. Mr. Justice Cohen took no part in the consideration or decision of this case.
In September of 1961 appellant Glenn Blose entered guilty pleas to two counts of burglary and one count of prison breach. He received two 1 to 2 year sentences for the burglary and a six to twelve month sentence for the prison breach; these sentences were consecutive making appellant's aggregate sentence 2 1/2 to 5 years. Blose was paroled in January of 1964 and then, in October of 1965, recommitted as a parole violator. He now attacks his 1961 guilty plea in this Post Conviction Hearing Act proceeding. After relief was denied without hearing by the trial court, the Superior Court affirmed without opinion. See Commonwealth v. Blose, 211 Pa. Superior Ct. 737,
A.2d 822 (1967).*fn1 Allocatur was then granted by this Court.
Appellant contends that his 1961 guilty pleas were entered without counsel, a fact which is not disputed. However, the post-conviction court concluded that Blose knowingly and intelligently waived representation by counsel. Commonwealth ex rel. Mullins v. Maroney, 428 Pa. 195, 198, 236 A.2d 781, 784 (1968) succinctly states the requirements of a valid waiver: "[B]efore there can be an effective and valid waiver of counsel the accused must be fully apprised of the extent of his rights in connection therewith. This necessitates that he be informed or know not only of his right to consult with an attorney, but also if he is indigent that a lawyer will be appointed to represent him. In short, he cannot intelligently waive a right of which he is not fully aware."
Mullins then discusses the problem of the burden of proof, concluding that where the record does not show that the accused was informed or knew of his right to counsel and that counsel would be appointed for him if he was indigent,*fn2 the burden is placed upon the Commonwealth to establish that the accused was fully aware of his rights at the time the alleged waiver occurred. "[T]he record must show in the case of an indigent defendant that he is informed of or fully understands that the court will provide him with counsel without charge if he so desires. Unless this appears in the record, the burden is upon the Commonwealth to establish that the defendant was fully aware of his rights at the time the alleged waiver occurred." 428 Pa. at 199, 236 A.2d at 784. (Emphasis supplied.)
Although no record is available of what in fact transpired at the time appellant's plea was entered, the opinion of the post-conviction court gives the following account of the proceedings:*fn3 "He [appellant] was advised by the Court he should have an attorney and he then informed the Court he wanted Marjorie Matson. As Mrs. Matson lives and practices in Pittsburgh, and it is not customary for the Court to appoint and pay an attorney from that place with two hundred miles to travel, the Court advised Blose it would not appoint Mrs. Matson but would appoint a local attorney to represent him. Mr. Blose then stated he did not want an attorney and requested the Court to proceed with sentence; . . ."
There is thus no record demonstration that Blose was informed or knew that, as an indigent, he was entitled to an attorney free of charge.*fn4 Under these circumstances, the burden was upon the Commonwealth to demonstrate that appellant knew that free representation was available. The only suggestion made as supportive of a conclusion that appellant did possess the requisite knowledge is a statement in the post-conviction court's opinion that appellant had prior ...