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UNITED STATES EX REL. ROUGHT v. RUNDLE

June 5, 1970

UNITED STATES ex rel. Walter J. ROUGHT
v.
Alfred T. RUNDLE, Supt.


Higginbotham, District Judge.


The opinion of the court was delivered by: HIGGINBOTHAM

HIGGINBOTHAM, District Judge.

 For reasons to be elaborated I shall deny relator's petition for writ of habeas corpus. Relator, who is presently incarcerated at the State Correctional Institution at Graterford, was indicted in the Quarter Sessions Court of Chester County, Pennsylvania on bill numbers 298, 298A, 393, 393A, 394C, 394D, 394E, 395C, 395D, 395E, 396C, 396D, 396E, 397C, 397D, 397E, 398C, 398D, 398E, 399C, 399D, 399E (September Term, 1965), charging burglary and larceny of kitchen cabinets, fixtures, panelling, etc. After a plea of guilty he was sentenced on January 28, 1966, and took no appeal.

 Relator pursued state Post-Conviction Hearing Act remedies right up to the Pennsylvania Supreme Court and was denied the relief he sought. Among other grounds asserted in the State Court proceedings relator attacked his guilty pleas, claiming that they were motivated by the existence of a coerced confession and/or were not voluntary because his counsel forced him to plead guilty.

 A Post-Conviction hearing, the transcript of which runs to 109 pages, was held on October 10, 1968. At that time the relator, P. Richard Klein, his counsel at the time of his guilty plea, and Edward Bonk, the State Trooper who investigated the offenses, all testified.

 In his opinion filed after the evidentiary hearing, Judge Kurtz stated: "We believe that the confession was not coerced," and he noted that the "confession was not offered in evidence at the time [relator] entered his pleas of guilty."

 Rought had pleaded guilty before Judge Kurtz on January 28, 1966. So far as the 28-page record reveals Rought himself did not say a single word; nor was he asked any questions. Rather, the Assistant District Attorney stated that "Rought is pleading guilty to various burglary and larceny charges, these offenses having occurred in August and September and October throughout Chester County." Rought and his attorney signed and dated the several indictment bills which bore the following inscription:

 
"The defendant having been advised of the offense charged in the bill of indictment and of his rights, hereby (in Open Court) waives action by the Grand Jury and consents to proceed on the within bill of indictment presented by the District Attorney."
 
"And now 1-28-66 the defendant being arraigned pleads (guilty)."

 Judge Kurtz conducted the later PCHA hearing as if petitioner had the burden of proof on the issue of the voluntariness of his plea. The United States Court of Appeals for the Third Circuit however has held that: "In the absence of an adequate record at arraignment as to the factual basis on which the plea was entered, it becomes necessary to examine thoroughly the 'totality of circumtances' on a case by case basis, with the Commonwealth having the burden of proof on the issue." United States ex rel. Crosby v. Brierley, 404 F.2d 790, at 796 (CCA3, 1968). (Emphasis added.) And see: United States ex rel. McCloud v. Rundle, 402 F.2d 853 (CCA3, 1968).

 Placing the burden of proof on the Commonwealth as to the voluntariness of relator's guilty pleas I have made a complete review of the entire State Court record, including commitment papers, arrest and search warrants, criminal complaints, bills of indictment, notes of testimony of the arraignment, notes of testimony of the Post-Conviction hearing, petitions, orders, and Judge Kurtz's opinion. From my review of the entire State Court record I find that there is no need to conduct an independent evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); United States ex rel. Rowles v. Myers, 407 F.2d 1332 (CCA3, 1969); *fn1" and with the Commonwealth having the burden of proof under the "totality of circumstances" I still find that relator's guilty pleas were voluntarily and knowingly entered and were entirely lawful.

 A few excerpts from the transcript of the Post-Conviction hearing reveal the nature of relator's claim as to the voluntariness of his guilty pleas. First Mr. Lentz, relator's PCHA attorney, is questioning relator on direct examination:

 
"Q: * * * you have alleged, among other things, that your plea of guilty was unlawfully induced, is that correct?
 
"A: That is correct.
 
"Q: Would you tell the court what the basis of that allegation is.
 
"A: From statements made by the Pennsylvania State Police, Mr. Bonk, and the arresting officers of the Paoli Police Department, they informed me upon my apprehension of being taken to the Paoli Police Station that if I didn't plead, why, my wife was ...

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