Hastie and Max Rosenn, Circuit Judges and McCune, District Judge.
Harry Shank has appealed an order denying his petition for writ of habeas corpus entered September 9, 1970, by the United States District Court for the Eastern District of Pennsylvania. Petitioner had filed a petition under the Pennsylvania Post-Conviction Hearing Act (19 P.S. § 1180-1 et seq.) on February 20, 1968, and had been granted a hearing on the allegations contained therein on June 3, 1968. On October 9, 1968, the Honorable Alexander F. Barbieri who had conducted the hearing denied the petition. Counsel, who had been appointed for petitioner prior to the hearing, appealed that order to the Superior Court of Pennsylvania which affirmed Judge Barbieri on June 3, 1969, and the Supreme Court of Pennsylvania on August 25, 1969, denied Petition for Allowance of Appeal.
Petitioner then filed his petition for writ of habeas corpus. The United States District Court to which it was assigned held no hearing but decided the petition on the available record.
We need go no further than to decide whether petitioner should have had a hearing in the United States District Court on his petition for habeas corpus.
The Post-Conviction Hearing Act petition was filed almost ten years after petitioner was sentenced to a term of sixteen to forty years on guilty pleas to indictments charging four counts of armed robbery. (The sentences on each of the four counts of armed robbery were for four to ten years, thus the aggregate sentences of sixteen to forty years. The sentence on a count of carrying a concealed weapon was suspended.)
The question which confronted the hearing judge on the PCHA petition and the U. S. District Judge on the petition for writ of habeas corpus was whether the pleas were voluntarily and knowingly entered. The hearing judge held that they were so entered. The district judge, based upon a review of the record, agreed. The purpose of our review is to determine whether the court below abused its discretion when it omitted another hearing and found the pleas to have been voluntary and to have been knowingly entered.
A federal district court may, within its discretion, dismiss a petition for writ of habeas corpus without a hearing if petitioner was afforded a fair and adequate hearing in a state court and if the decision of the state court is fairly supported by the record, Townsend v. Sain, 372 U.S. 293, 313, 318, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); United States ex rel. Lawson v. Cavell, 425 F.2d 1350 (3d Cir. 1970); 28 U.S.C.A. § 2254(d).
The main contention of petitioner was that his guilty plea was not voluntary because it was motivated by a coerced confession. In his petition he contended that he was persuaded to admit his guilt by police officers who took advantage of him while he was wounded and in pain and under sedation and in apprehension for himself and for his family. His petition avers that he was arrested in Harrisburg on March 28, 1958, about 10:00 o'clock at night and was shot and seriously wounded in attempting to escape. He was hospitalized forthwith and about three days later was taken by ambulance to Philadelphia for further hospitalization and surgery. On the trip he was accompanied by detectives to whom he made admissions. Obviously he did not have counsel at this time and he contends that his privilege against self-in-crimination was violated, he was denied his right to competent counsel, his pleas were unlawfully induced and were not voluntarily or knowingly entered.
He contends that when he was called for trial his appointed counsel was incompetent, did not discuss the case with him, that no one explained to him that he had a right to trial by jury and that he was not told by anyone what the result of a plea might be except for a detective who promised him a sentence of five to ten years. He contends that when a public defender visited him in jail prior to trial and when he explained that he had confessed to the police, the public defender told him he had no choice but to plead guilty and that he thought that he had no choice. He contends that had he been properly treated and properly represented there would have been no confession and therefore no necessity to plead.
Petitioner also complained that he was arrested without a warrant and that he had no hearing in Harrisburg before his removal to Philadelphia and that he had no counsel during this time. The court below did not consider these allegations since his guilty plea would constitute a waiver of non-jurisdictional defects prior to the plea if his plea was voluntarily and knowingly made, United States v. Ptomey, 366 F.2d 759 (3d Cir. 1966).
Petitioner was represented by the Philadelphia Voluntary Defender but the record is clear that the particular public defender who represented defendant at his plea did not see the petitioner until the morning of his plea although other representatives of that office had visited him in jail long before the date set for trial. The court below applied the presumption that the late appointment of trial counsel established a prima facie case that counsel was ineffective following United States ex rel. Mathis v. Rundle, 394 F.2d 748 (3d Cir. 1968).*fn1 The court below decided however from the evidence produced at the post-conviction hearing and the record in the trial court that petitioner was not prejudiced by the late appointment of trial counsel and that counsel was not ineffective.
Notwithstanding the holding in McMann v. Richardson, 397 U.S. 759, 772, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970) (decided May 4, 1970), that the plea could not be made the subject of collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his counsel, the court below addressed the issue whether the plea was voluntarily and knowingly entered.
We have examined the record to determine whether it fairly supports the finding of the court below because there is no requirement that another hearing be held if fair support is found in the record.
The indictments charged that petitioner committed four armed robberies. There were at least eight counts growing out of the four robberies, four of which were the armed robbery counts themselves. There was at least one count charging that defendant carried a concealed weapon and there were three counts that he had committed assault and battery with intent to murder. In two of the robberies the victim had been shot and in one of them the ...