The opinion of the court was delivered by: LORD, III
The seeds of this case were sown in 1964. An incident in January of that year led to relator's indictment under Bills 1328 (possession of narcotic drugs), 1329 (use of narcotic drugs), and 1330 (assault and battery and resisting arrest) [January Sessions]. An incident in August led to relator's indictment under Bill No. 1136 (possession of narcotic drugs) [September Sessions]. A November incident led to relator's indictment on Bills No. 1968 (possession of a firearm after commission of a crime of violence) and 1969 (possession of narcotic drugs) [November Sessions]. On May 24, 1965, the relator, who appeared with his counsel, pleaded guilty to all charges. Thereafter he was sentenced to two to ten years on Bill No. 1328, a consecutive sentence of one to five years on Bill No. 1969, and a concurrent sentence of one to five years on Bill No. 1136. Sentence was suspended on all other charges.
Relator now attacks the validity of his guilty pleas. He has exhausted his state remedies on this issue.
A plea of guilty entered with advice of counsel is presumptively valid, and the burden is on the habeas petitioner to show that his plea was not knowingly and voluntarily made. United States ex rel. Sadler v. Commonwealth of Pennsylvania, 434 F.2d 997, 999 (C.A. 3, 1970); United States ex rel. Grays v. Rundle, 428 F.2d 1401 (C.A. 3, 1970). Whatever record was made at the time of the entry of the pleas in 1965 is now unavailable.
Hence, we turn to the transcripts of the preliminary hearing of November 13, 1964, the Pennsylvania Post Conviction Hearing Act hearing of March 18, 1969, and the hearing held in this court on November 30, 1970, in order to find the facts relevant to this case. These materials will reflect whether or not relator has sustained his burden of proof.
"Information from a reliable informant who has been used in the past in making many arrests in the Illicit Narcotic Traffic[.]"
On August 14, 1964, the same two agents, again acting pursuant to a search warrant, searched relator's apartment. They found relator about to administer heroin to himself and arrested him (N.T.H.C. 29). He was later released on bail. The affidavit of probable cause for this search warrant read as follows:
"The above-named Police Officer has received information from an informant of known reliability, that person named on the warrant illegally possesses narcotics in his residence. The informant has given this officer within the past year information which has led to approximately fifteen arrests."
One evening in November, 1964, two Philadelphia police officers heard a call over their radio that in a certain area there was
"[one] colored man, approximately 25 years of age, with a blue topcoat and a gray hat carrying a gun." (N.T.P.H. 5).
These officers went to the area in question and stopped three or four persons who answered this description before they saw relator (N.T.P.H. 6). They saw the relator, who answered the radio description, entering the rear seat of a cab, and saw that a companion was about to join him therein (N.T.P.H. 7). Officer Steele approached the cab in which Watson was seated, opened the door and told Watson to get out. At this point the officer first noted that Watson was attempting to hide a pistol under the seat (N.T.P.H. 9). Relator was then arrested for violation of the Uniform Firearm's Act. He was searched and nothing was found on him. He was taken to police headquarters where he was again searched and thirteen bags of heroin were found in his topcoat (N.T.P.H. 12).
In May or June of 1964 the relator retained counsel. He met with his lawyer at that time and discussed the circumstances of the January arrest (N.T.H.C. 50). The next time relator saw his lawyer was after he made bail on the September charges, and at that time the two talked for about an hour (N.T.H.C. 52, 53). Counsel and client next met on November 13, 1964, just before the preliminary hearing relating to the November arrest. They discussed the arrest for a short time, during which relator told counsel that the police had planted the narcotics on him.
Counsel then participated in the preliminary hearing on relator's behalf.
Relator next saw his lawyer at the arraignment in February of 1965, at which time the latter suggested pleas of guilty to all counts (N.T.H.C. 61). The lawyer advised his client that the police officers had the evidence on him (N.T.H.C. 62). At no time did he make relator aware of any potential challenges to the evidence (N.T.H.C. 63, 71). Counsel indicated that, if relator pled guilty, he might be hospitalized for treatment (N.T.H.C. 62, 63, 81). He never indicated what sentence, if any, relator might be given in the event he pled guilty (N.T.H.C. 81). He did indicate, however, that if Watson did not plead guilty he would probably get a considerable sentence (N.T.H.C. 72, 89, 92, 93).