The opinion of the court was delivered by: LUONGO
On May 24, 1962, David Robinson appeared in the Court of Quarter Sessions, Philadelphia, to stand trial on several indictments and charges: (1) No. 2412, February Sessions 1962 (aggravated robbery); (2) No. 778, December Sessions 1961 (burglary, larceny, and receiving stolen goods); (3) Nos. 705-707, August Sessions 1960 (charging, inter alia, burglary, larceny of an automobile, larceny, and operating a motor vehicle without the consent of the owner).
At the request of the prosecuting attorney, trial on No. 2412 was continued due to the unavailability of defense witnesses.
Robinson entered a plea of guilty to No. 778. After trial by a judge without a jury on Nos. 705-707 he was found guilty on No. 705 and not guilty on Nos. 706 and 707.
Robinson has filed a petition for writ of habeas corpus in this court
contending that these convictions were obtained in violation of his federal constitutional rights in that (1) the guilty plea on No. 778 was not voluntarily and intelligently entered; (2) he was ineffectively represented because of late appointment of counsel, and the ineffectiveness of counsel was evidenced, inter alia, by counsel's waiver of a jury trial, and by counsel's failure to request a severance, and (3) sentence was imposed in the absence of counsel.
Counsel was appointed to represent Robinson in these habeas corpus proceedings. Evidentiary hearings were held on July 22 and September 9, 1970. From a review of the state court records and from the evidence adduced in this court, I conclude that relator's claims are without merit and the petition for writ of habeas corpus will be denied.
(1) Guilty Plea on No. 778.
Due process requires that a plea of guilty be made voluntarily and with a full understanding of the consequences [ United States ex rel. Ackerman v. Russell, 388 F.2d 21 (3d Cir. 1968)] because it is in legal effect a conviction [ Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 (1927)] which "operates as a waiver of all the constitutional, statutory, and judicially created safeguards afforded a defendant in a trial * * *" United States ex rel. Crosby v. Brierley, 404 F.2d 790, 797 (3d Cir. 1968). See United States v. Ptomey, 366 F.2d 759 (3d Cir. 1966); United States ex rel. Maisenhelder v. Rundle, 349 F.2d 592 (3d Cir. 1965).
Relying on United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir. 1968) and related cases,
Robinson has argued that the Commonwealth has the burden of proving that his guilty plea was voluntarily and intelligently entered since no on-the-record inquiry on these questions was made by the trial court.
But in United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3d Cir. 1970) the Court of Appeals held that where an accused was represented by counsel at the time the plea was entered, the burden of proving invalidity of the plea is on the relator. See also United States ex rel. Jones v. Russell, 320 F. Supp. 1028 (E.D. Pa., filed October 13, 1970); United States ex rel. Kidd v. Commonwealth of Pennsylvania, 320 F. Supp. 1201 (E.D. Pa., filed October 1, 1970). Robinson was represented by counsel at the time of the entry of the plea and it is his burden, therefore, to prove that the plea is invalid.
The only evidence offered by Robinson on the issue of lack of voluntariness and intelligence of the plea was his testimony to the effect that, without the benefit of prior discussion with counsel, he, Robinson, for the first time decided in open court to plead guilty to No. 778 because he became confused and afraid when they called him for trial on several cases. He testified that although he understood that by pleading guilty he was admitting responsibility for the crime, he did not understand the "legal ramifications" of the plea, and the "legal ramifications" were not explained to him by his court-appointed attorney, Bernard L. Segal, Esq. (who was at that time first assistant Voluntary Defender), or by the presiding judge, the Honorable Mark E. Lefever.
Robinson's testimony was refuted by the records of the Defender's office, the state trial record, and the testimony of Bernard L. Segal.
The Defender's office conducted two interviews with relator prior to trial, one in March, 1962, the other on April 2, 1962. At the latter interview, according to the Defender's records, Robinson indicated his desire (1) to plead guilty to No. 778; (2) to plead not guilty to Nos. 705-707 and to waive a jury trial; and (3) to plead not guilty to No. 2412 and to demand a jury trial.
The state trial record indicates that Robinson himself asked to plead guilty to No. 778 after conversing with counsel. Although on direct examination at the hearing in this court Robnsion testified that this conversation with counsel consisted only of his statement to Segal that he did not wish the Defender's office to represent him, and Segal's statements insisting that Robinson plead guilty, on cross-examination Robinson admitted that Segal told him that there were no defenses available on No. 778. From that it is obvious to me that Robinson did discuss his case with Segal before entering the plea. Further, Robinson admitted at the habeas hearing that it had been his hope that by pleading guilty on the one indictment he would favorably dispose the court toward his innocence on the other charges.
The state record also indicates that the Commonwealth had overwhelming evidence of Robinson's guilt on No. 778. Robinson had been caught red-handed by the police while he was attempting to burglarize a gas station. In a search of his car at the scene, the police found numerous items taken from the premises. Robinson admitted his guilt in open court explaining that he committed the crime while intoxicated and only because his own gas station had previously been victimized. He expressed a desire to make restitution.
Robinson was no stranger to criminal proceedings. On at least one other occasion, while represented by counsel, he had entered a guilty plea. His selection of different pleas and strategies on the various indictments reveals a knowledge of his legal rights and the "legal ramifications" of a guilty plea. See Orr v. United States, 408 F.2d 1011 (6th Cir. 1969). I am satisfied that Segal, an able trial attorney specializing in criminal law, was familiar
with the facts and circumstances surrounding the charges and that he discussed Robinson's rights and possible defenses with him before advising him to plead guilty. I conclude that relator, faced with overwhelming evidence of guilt, decided to plead guilty in the hope that he would thereby put himself in a more favorable light in the forthcoming trial on the other ...