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COMMONWEALTH v. GANSS (11/12/70)

decided: November 12, 1970.

COMMONWEALTH
v.
GANSS, APPELLANT



Appeal from order of Court of Common Pleas of Butler County, March T., 1962, Nos. 11 to 14, inclusive, in case of Commonwealth of Pennsylvania v. Charles Conrad Ganss, Jr.

COUNSEL

Michael M. Mamula, Public Defender, for appellant.

Robert F. Hawk, Assistant District Attorney, and John H. Brydon, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 440 Pa. Page 603]

On April 30, 1962, after a jury trial, appellant was found guilty of burglary, arson, armed robbery and murder in the first degree. The jury fixed the penalty for murder at death. On June 17, 1964, a new trial was granted appellant for reasons not relevant to our determination of the instant appeal. On August 5, 1964, appellant's counsel filed notice with the court that the appellant, with the consent of the members of his family (appellant was nineteen years old at the time) would enter a general plea of guilty to the charge of murder and a plea of guilty to the other charges.

On October 5, 1964, the appellant formally entered his pleas of guilty at his arraignment before the court en banc. After a trial to determine degree of guilt, the court en banc found appellant guilty of murder in the first degree and sentenced him to life imprisonment, which sentence was made concurrent with the separate, consecutive sentences of ten to twenty years on the other charges.

[ 440 Pa. Page 604]

In July, 1968, appellant filed a post-conviction petition alleging that his guilty plea was not knowingly and voluntarily made, and that his plea was motivated by an unconstitutionally obtained confession. Appellant's petition also alleges that he did not knowingly waive his right to appeal from the 1964 sentence and that a new trial should be granted because the court erred in referring to appellant's allegedly unconstitutional confession in reaching the degree of guilt and subsequent sentence.

Appellant complains that there was no on-the-record colloquy at the time of the entry of his guilty plea to establish its voluntariness. This guilty plea antedates Com. ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968). The decision in West was not made retroactive. In such circumstances the burden of establishing that his guilty plea was involuntarily entered is on the appellant.

Appellant was represented by counsel, and as the Court of Appeals for the Third Circuit stated in U.S. ex rel. Grays v. Rundle, 428 F. 2d 140 (Third Circuit, 1970): "Where the defendant pleads guilty with the advice of counsel, however, there is no reason to presume that he was ignorant of the nature of the charge or the consequences of the plea. Indeed, the more rational assumption is that all the necessary considerations which should have been recorded at the guilty plea proceedings were canvassed with him by his counsel before the decision to plead guilty was reached. In such a case, therefore, even though the record is silent, we should presume that the plea of guilty was voluntarily entered as an independent and knowing act rather than presume the contrary." See Commonwealth v. Brandon, 440 Pa. 147, 269 A.2d 653 (1970).

In the instant case, there is ample reason to presume that the guilty plea was ...


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