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August 5, 1969

UNITED STATES of America ex rel. Lee WIGGINS

The opinion of the court was delivered by: KRAFT

 Relator, a state prisoner, was convicted upon his plea of guilty, on April 23, 1964, to eleven bills of indictment charging him with aggravated robbery and related crimes. He was sentenced from five to ten years on two indictments and one to ten years on a third. All sentences were to run consecutively. On May 18, 1964, one of the five to ten year sentences was vacated and reduced to one to ten years.

 In his present petition, relator alleges: (1) that his plea of guilty was not voluntarily made because he was then undergoing a psychomotor epileptic seizure; (2) that the state post-conviction judge failed to accord him a full and fair hearing on his petition.

 The second ground is untenable, since it does not furnish a basis for federal habeas corpus relief. Any alleged inadequacies in the state post-conviction procedure are immaterial because the relator has been given a full and complete federal evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 316, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).

 Relator also seeks to avail himself of the recent holding of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (June 2, 1969), wherein the Court reversed the state court "'because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.'"

 In reaching its decision, the Supreme Court cited and quoted with approval *fn1" the holding of the Pennsylvania Supreme Court in Com. ex rel. West v. Rundle, 428 Pa. 102, 105-106, 237 A.2d 196, 197 (1967) which reads as follows:

"A majority of criminal convictions are obtained after a plea of guilty. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences."

 In the instant case it is manifest from the record that no examination of the defendant was conducted by the trial court to ascertain whether the relator understandingly and voluntarily entered his pleas of guilty. However, the Pennsylvania Supreme Court has recently held that West is not to be applied retroactively, *fn2" Com. v. Cushnie, 433 Pa. 131, 249 A.2d 290 (Jan 15, 1969) and that in all cases tried before West was decided the burden remained on the defendant to establish that he did not enter his guilty plea knowingly. "In fact, in Commonwealth v. Coleman, 430 Pa. 438, 243 A.2d 328 (1968), a case where the guilty plea was entered in 1965, after our decision in Barnosky,3 we indicated that the burden of proof remained on the defendant." *fn4" Moreover, that the matter is one of credibility and the hearing judge may refuse to believe the defendant's version of what happened.

 In Boykin, the United States Supreme Court referred to McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), which reversed a United States district judge, who accepted a guilty plea and failed to comply with Rule 11 of the Federal Criminal Rules. Subsequently, on May 5, 1969, in Halliday v. United States, 394 U.S. 831, 89 S. Ct. 1498, 23 L. Ed. 2d 16, the United States Supreme Court declined to apply McCarthy, retroactively and stated:

"We hold that only those defendants whose guilty pleas were accepted after April 2, 1969, are entitled to plead anew if their pleas were accepted without full compliance with Rule 11."

 The rationale of Halliday was that the impact of retroactivity on the administration of justice outweighed the extent to which the condemned practice infected the integrity of the truth-determining process.

 We fail to see any sound reason why the Halliday rationale should not be applied to Boykin, which unquestionably has a greater impact on the administration of state criminal justice than McCarthy would have on federal criminal procedure. Accordingly, we decline to apply Boykin retroactively.

 As we have earlier indicated, the present relator's guilty plea was accepted by the Court without an on-the-record inquiry to determine its voluntariness. Pennsylvania holds that there is a rebuttable presumption that a defendant, who enters a guilty plea, understands the consequences of his act. Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Where the record discloses no inquiry by the trial judge prior to acceptance of the guilty plea, the presumption is of doubtful validity. United States ex rel. Crosby v. Brierley, supra 404 F.2d at p. 796 fn. 11.

 We need not concern ourselves here about the obvious disagreement which exists as to whether the burden of proof shifts to the Commonwealth in due process attacks upon a guilty plea. This case differs materially from the usual assault upon the validity of a guilty plea, because this relator contends that he was rendered mentally incapable, by reason of an epileptic seizure, from comprehending the nature and effect of the very proceedings in which his guilty plea was entered. He specifically denies any knowledge of the proceedings and his willingness to plead guilty therein.

 Relator's counsel, Robert Williams, Esq., did not testify at the federal habeas corpus hearing, because he had no present recollection of the trial and his representation of the relator. The District Attorney, pursuant to a stipulation of counsel, offered Mr. Williams' prior testimony at the state post-conviction hearing. (State n.t. pp. 5-26).

 Mr. Williams recognized and recalled the relator, but had no recollection of specific conversations with him prior to the entry of a guilty plea. He testified that he could not recall anything unique or unusual about the relator's appearance or demeanor on the day of the entry of the guilty plea. (State n.t. 8).

 Mr. Williams was only able to state that, generally, he explained to his clients, the consequences of a guilty plea, the maximum sentences possible under the law, and the alternatives available, such as, a not guilty plea with a jury trial or a trial by a judge. (State n.t. 12-14).

 The relator's medical record reveals a history of epilepsy from the age of ten. While he was awaiting trial at the State Correctional Institution at Holmesburg, he was given anti-convulsant drugs for twenty-two days. On the day of his trial, however, he was not given the medication. This omission accorded with the common practice of the state court, designed and intended to avoid having a defendant considered incompetent because of the influence of drugs.

 Dr. Hering, who is presently the Director of the Psychiatric Division of the Quarter Sessions Court, testified in support of the relator's claim. He was formerly Psychiatric Consultant to the State Correctional Institution in Philadelphia. He only treated relator after he was convicted and incarcerated at that institution.

 Dr. Hering testified before us that the withdrawal of medication most probably caused the relator to have a psychomotor epileptic seizure rendering him incapable of entering a voluntary plea of guilty (Fed. n.t. 67-70). Dr. Hering opined that there was a "75, 80 or maybe 90 percent," probability that the relator had a psychomotor seizure. (Fed. n.t. 67). He explained that during such a seizure, relator would be "childlike" and his answers to questions would be "free of guile", because he would be trying to please everybody the way a child would; that the seizure would not be of a violent nature, but would be a stupor or fugue state of semiconsciousness; that such a seizure could last two, five, or ten minutes or as long as three days. (Fed. n.t. 68-72). Dr. Hering diagnosed relator's epileptic condition as being of a "mixed type" which connotes several types of seizures. (Fed. n.t. 71).

 Relator's counsel also offered Dr. Hering's testimony given during the state post-conviction hearing. Although he there stated substantially the same ultimate conclusion, that the relator would be incapable of entering a voluntary plea of guilty while undergoing a psychomotor epileptic seizure, Dr. Hering was then notably less definite in his opinion as to actual occurrence of such a seizure on the day of the plea. (State n.t. p. 38).

"Q. He is saying that his trial should be set aside because he did not know what was going on; and are you, Doctor, in your opinion, trying to testify here to me today, before us today, that in view of all this, this man did not know what was going on?"
"A. It is very possible; yes sir."
"Q. It is very possible?"
"A. I am not saying that it was."
"Q. Is it also possible from what you have heard in my relation of the notes of testimony from pages 9 through half of 13 that it is also possible that he did know what was going on?"
"A. Very possible."

 The opinion given by Dr. Hering at the state court hearing was expanded at the federal hearing. He contended, inter alia, that when he said "very possible", he really meant "most probable."

 The relator testified that all he remembered of the events attending his guilty plea was that he entered the van used to transport him to court and he remembers being in City Hall but he does not recall his "trial." He stated that the next thing he remembered was being incarcerated in a cell at this present place of confinement.

 The notes of testimony (pp. 9-14) of relator's plea and sentencing reveal the following colloquy between the relator and his counsel:


 LEE WIGGINS, being duly sworn, was examined and testified as follows:


Q. What is your full name?
A. Lee Wiggins.
Q. Where do you reside?
A. 48 North 51st Street.
Q. Philadelphia, Pennsylvania?
A. Yes, sir.
Q. You have entered a plea of guilty to these charges, carrying concealed deadly weapon and and aggravated robbery; is that correct?
A. Yes sir.
Q. I want you to keep your voice up so that his Honor can hear you. You were ...

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