The opinion of the court was delivered by: MASTERSON
On October 8, 1958, the relator, Kenneth R. Bolden, was sentenced to a term of fifteen to thirty years of imprisonment by the Court of Quarter Sessions, Delaware County, Pennsylvania. The relator had entered pleas of guilty to charges of armed robbery, carrying a concealed deadly weapon, conspiracy to commit a burglary, burglary, and assault with intent to rob, as specified in Bills of Indictment Nos. 165-168, and 621-623 of the June Sessions, 1958. The relator did not appeal his conviction, and at the present time he still is confined at the Graterford Prison in Pennsylvania.
Approximately nine years after his conviction the relator filed a motion for a new trial nunc pro tunc in the Court of Quarter Sessions. This motion was dismissed on February 24, 1967, and, shortly thereafter, his appeals to the Superior Court of Pennsylvania and the Supreme Court of Pennsylvania, respectively, were denied. Thereafter, pursuant to Title 28 U.S.C. § 2241 et seq., the relator filed the current petition for a writ of habeas corpus. His present contentions, i.e., that his current confinement is unconstitutional because resulting from the entry of an invalid guilty plea and the deprivation of the effective assistance of counsel, were advanced throughout the state proceedings and it is conceded by the Commonwealth that as to these contentions he satisfactorily has exhausted his state remedies pursuant to Title 28 U.S.C. § 2254. See, e.g. Roberts v. LaVallee, 389 U.S. 40, 42-43, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967). For reasons discussed below the relator's petition for a writ of habeas corpus is denied.
Since the state record was incomplete this Court conducted two separate hearings for the purpose of permitting the relator to produce testimony relevant to his constitutional contentions. The following summary of the relevant factual background, including the conduct of the relator's arraignment and sentencing hearings, is based upon a review of the complete state and federal record.
On the evening of February 15, 1968, four men, including the relator, entered Mailman's Department Store on Third Street, in Chester, Pennsylvania. The relator and another one of the men were carrying guns. The robbers herded the store employees into a bathroom in the rear of the store and proceeded to take money from the cash register and to remove from the clothes racks various articles of clothing, including hats and boys' suits. The robbers fled the scene of the crime in a getaway car. (TC, N.T., 2-38). Later that year, on April 28th, the relator, and three other men, carrying three guns between them, entered the Penn Fruit Super-market in Chester. During the course of this robbery they were apprehended by the Chester County police who immediately arrested them, and upon searching them, uncovered a large amount of cash.
While the relator was confined at a state correctional institution awaiting trial, he was interviewed by a private attorney retained for him by his sister. (FHH, N.T., 5-6, and SHH, N.T., 2-4). During this interview he told counsel, who had worked for several years as an Assistant District Attorney in Philadelphia and who had extensive experience in criminal law, that he was guilty, that he had cooperated with the police and that he had confessed. (SHH, N.T., 4). Although the testimony of the relator and his counsel are conflicting on this point, counsel did at least inform the relator that the latter had no basis upon which he could attack his confession, that, accordingly, it would be wise to plead guilty, and that probably he would receive a sentence of not more than five years. (FHH, N.T., 5 and SHH, N.T., 6, 13). In his testimony before this Court the relator conceded that counsel never had guaranteed, or even promised, that his sentence would be five years or less (FHH, N.T., 5, 20), and at no time has the relator claimed that counsel represented to him that the prosecutor or the trial judge had promised to limit the sentence to five years in exchange for a guilty plea. (FHH, N.T., 19).
On June 4, 1958, the relator was arraigned in open court. Although he stood alone at the moment when he signed the Bills of Indictment, and thereby waived presentment of the Bills to the Grand Jury and formally entered his plea of guilty, he was represented during the rest of the hearing both by his private principal counsel and by an attorney, a member of the Delaware County Bar, whom his counsel had retained. It is conceded by the Commonwealth that neither then nor later did the Court interrogate the relator as to the voluntary nature of his plea or as to his understanding of the consequences he faced by pleading guilty. Because one of the relator's co-defendants decided to plead not guilty, the Court deferred sentencing of all the defendants allegedly involved in the robberies until June 16, 1958.
On the morning of June 16, 1958, Peyton Johnson, the co-defendant pleading not guilty, was tried on a series of indictments charging, inter alia, participation in the robbery of the Mailman's Department Store. At the suggestion of his counsel the relator had agreed to testify for the Commonwealth. (FHH, N.T., 12). During the course of his testimony at Johnson's trial the relator indicated that he had a clear understanding of the charges against him:
"Q. Now what were you going to do when you got to Chester?
A. Well, we had intentions of trying to get some money by means of armed robbery.
Q. By means of armed robbery?