The opinion of the court was delivered by: KRAFT
Over sixteen years ago, on June 2, 1953, relator pleaded guilty to charges of burglary and larceny of the Bryn Mawr Thrift Shop and received a sentence of 5 to 20 years.
Relator attacks the validity of this conviction claiming that he never committed the crime and that his guilty plea was involuntary. He seek to benefit from the United States Supreme Court's recent decision in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (June 2, 1969) which reversed a state conviction because the record failed to reflect that the defendant voluntarily and understandingly entered his pleas of guilty. We are of the opinion that Boykin should not be applied retroactively for the same reasons that the United States Supreme Court declined to apply McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (April 2, 1969) retroactively to pleas of guilty in federal cases entered before April 2, 1969. Halliday v. United States, 394 U.S. 831, 89 S. Ct. 1498, 23 L. Ed. 2d 16 (May 5, 1969).
The record is clear that the Court never made an inquiry of the relator regarding his understanding of the charges and the consequences of his plea of guilty. Relator claims that he never discussed the case with his two appointed lawyers, and, in fact, never knew he had two lawyers. In an earlier state petition relator claimed that he was not even present when his plea of guilty was entered and sentence was imposed.
Relator admitted the authenticity of his signature subscribed on the waiver of the grand jury presentment, and the plea of guilty on the indictment.
Where a relator alleges that he did not enter his plea knowingly and voluntarily, the matter is one of credibility and the hearing judge may refuse to believe the petitioner's version of what happened. Com. v. Cushnie, 433 Pa. 131, 249 A.2d 290 (Jan. 15, 1969);
Tyler v. Beto, 391 F.2d 993 (1968), cert. denied 393 U.S. 1030, 89 S. Ct. 642, 21 L. Ed. 2d 574 (1969).
"As to whether [relator's] plea was knowingly and intelligently entered, the hearing court did not find [relator's] testimony on this issue credible. The hearing record fully justifies this conclusion; [relator] has therefore failed to carry his burden of proof." Com. v. Coleman, 430 Pa. 438, 243 A.2d 328 (1968).
We find the relator's testimony to be completely unworthy of belief. A fair reading of the record manifests a calculated effort on his part to mislead the Court on even the most basic circumstances of his state criminal proceedings. He was utterly untruthful and evasive throughout the entire federal habeas corpus hearing.
Accordingly, we enter the following
Now, this 24th day of July, 1969, it is ordered that the relator's petition for a writ of habeas corpus is denied.
There is no probable cause for an ...