voluntariness and effective assistance of counsel issues. The Court has subsequently given careful consideration to the transcript of those hearings, the evidence presented, and all other pertinent documents, with the result that we think the matter now ready for disposition.
Ineffective Assistance of Counsel
With respect to this issue relator contends that he never saw or spoke with counsel until minutes before his change of plea. During that single conversation, counsel is alleged to have insisted that relator plead guilty. While the latter claims to have resisted counsel's initial urgings, relator admits that he finally acquiesced in a change of plea. Relator also asserts that he was not informed by counsel of his right to a jury trial. Such information, it is alleged, would have made a difference in his decision to plead guilty. Counsel is finally alleged to have stated his unwillingness to defend relator on a plea of not guilty because of his belief that there was no possibility of acquittal.
The Commonwealth has drawn our attention to the Public Defender's file which indicates that Mr. McFadden, a non-attorney investigator of that office, interviewed relator at Broadmeadows Prison on January 25, 1968 to determine whether the Public Defender should accept the appointment to represent him. At that time Bagley's version of the facts was recorded for later use by the Public Defender. Moreover, the state court records show that relator was represented at his arraignment on March 7, 1968 by Mr. Evans of the Public Defender's Office. He was subsequently represented by the same attorney at both his re-arraignment and sentencing on March 27, 1968.
In addition, Mr. Evans testified that he was present and represented the relator at his arraignment on March 7, 1968. He further testified that about a week before the change of plea occurred, he reviewed the statement taken by Mr. McFadden and discussed it with Bagley. Mr. Evans indicated he advised relator to plead guilty because he had no defense to the charges against him.
Based upon the time of counsel's appointment and the effort expended in investigating the case, we find that relator has not presented even a prima facie case of the ineffective assistance of counsel. United States ex rel. Mathis v. Rundle, 394 F.2d 748 (3d Cir. 1968); United States ex rel. Whitten v. Pinto, 407 F.2d 852 (3d Cir. 1969); United States ex rel. Chambers v. Maroney, 408 F.2d 1186 (3d Cir. 1969); United States ex rel. McKnight v. Rundle, 301 F. Supp. 238 (E.D. Pa. 1969). This aspect of the petition is therefore without merit.
Voluntariness of Guilty Plea
Many of the facts relating to the prior issue are relevant to the voluntariness of relator's guilty plea. Bagley contends that he was never informed of his right to a jury trial and that the conduct of his counsel amounted to coercion of his guilty plea.
Judge Adams of our Circuit Court of Appeals recently summarized the law with regard to the issue of voluntariness in United States ex rel. Fear v. Com. of Pa., 423 F.2d 55 (3d Cir., 1970). He there stated:
"In pre- Boykin [ Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274] (decided June 2, 1969) cases where there had been no appropriate on-the-record inquiry, the burden of proving that a guilty plea was voluntarily and understandingly entered has been held to be on the prosecution." at 56.