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UNITED STATES EX REL. SMITH v. JOHNSON

November 24, 1975

UNITED STATES of America ex rel. William SMITH
v.
Robert L. JOHNSON, Superintendent, and District Attorney of Philadelphia



The opinion of the court was delivered by: BECKER

 EDWARD R. BECKER, District Judge.

 I. Preliminary Statement

 This is a petition for a writ of habeas corpus brought by a state prisoner who is presently serving a sentence of six to thirty years' imprisonment following his plea of guilty to three counts of aggravated robbery and one count of burglary before the Honorable Emanuel W. Beloff of the Court of Common Pleas of Philadelphia County on May 24, 1972. *fn1" Relator, represented by new counsel, appealed his conviction to the Superior Court of Pennsylvania, alleging that the plea was involuntarily and unintelligently entered and that he had received ineffective assistance of counsel. On May 17, 1973, the Superior Court affirmed relator's conviction without opinion. Commonwealth v. Smith, 225 Pa.Super. 745, 306 A.2d 375 (1973). The Supreme Court of Pennsylvania denied a petition for allocatur on October 10, 1973.

 Relator's pro se petition to this court asserted claims of ineffective assistance of counsel and involuntariness of the guilty plea relating to the unpreparedness of trial counsel, Harvey Booker, Esquire, of the staff of the Philadelphia Defender Association. The case had originally been assigned to William Killeen, Esquire, another Public Defender. Although Mr. Killeen was familiar with relator's case and was prepared for trial, the case was reassigned to Mr. Booker on the morning of trial because Mr. Killeen was detained in another courtroom on another case.

 The Commonwealth's answer set forth excerpts from the transcript of the guilty plea hearing. Those excerpts exposed the fact that, in receiving the plea, Judge Beloff neglected to inform relator of the maximum sentence which might be imposed. In view of the obvious constitutional problem which such an omission created, *fn2" United States Magistrate Edwin E. Naythons (to whom the petition was first referred upon its filing in this court) recommended that we hold an evidentiary hearing to determine whether relator, through some other advice, was aware of the possible consequences of his plea prior to the entry thereof. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). Magistrate Naythons also recommended that evidence be taken on the claim of ineffective assistance of counsel. We thereupon appointed Arthur L. Pressman, Esquire, as counsel for relator and held a two day hearing.

 The evidentiary hearing produced a metamorphosis of petitioner's claim. As will be seen, the Commonwealth amply demonstrated that relator knew the possible consequences of his plea, by virtue of a conversation with James Bryant, the Assistant District Attorney assigned to prosecute the case. However, the content of that conversation was so bizarre that it raised further questions as to possible prosecutorial overreaching and, thus, the voluntariness of the plea. We took extensive evidence on the subject of that conversation and on the subject of ineffective assistance of counsel. *fn3" We also took notice (and now take notice) of the state court record, for that forms an essential part of our record here.

 It will be helpful, before summarizing the applicable law and making our findings of fact and ultimate determination, to detail the applicable portions of the record. As will be seen, while we condemn the conduct of the prosecutor in this case, we do not find that relator was deprived of the effective assistance of counsel or that his plea was involuntary. Hence, relief must be denied. *fn4"

 A. The Plea Hearing before Judge Beloff

 At the guilty plea hearing on May 24, 1972 before Judge Beloff, relator was represented by Harvey S. Booker, Esquire, of the Philadelphia Defender Association; James J. Bryant, Esquire, then an Assistant District Attorney, represented the Commonwealth. The plea hearing consisted of relator's testimony and the testimony of Irving Swann, Horace Money and Officer Dennis Lane (to provide the factual basis for relator's plea). The testimony may be summarized as follows.

 Relator was questioned by Mr. Booker and Judge Beloff regarding the intelligence and voluntariness of his plea. Comm.N.T. 3-6. *fn5" During the colloquy that ensued the court asked Mr. Booker whether he had advised his client of his right to a jury trial. Booker answered in the affirmative. At this juncture, Mr. Booker questioned relator on the record as follows:

 
BY MR. BOOKER:
 
Q. Mr. Smith, how old are you?
 
A. Thirty-three.
 
Q. How far did you go in school?
 
A. The eleventh grade.
 
Q. Can you read and write the English language?
 
A. Yes.
 
Q. Do you understand today by entering a guilty plea you forego your privilege of a jury trial?
 
A. Yes.
 
Q. That the guilty statement of the jury must be made by the twelve jurors unanimously?
 
A. Yes.
 
Q. You also are aware of the fact that you could be tried by the Judge?
 
A. Yes.
 
Q. There is no question about that?
 
A. No.

 Thereafter, Judge Beloff questioned relator on the record as to whether his lawyer or the District Attorney had made any threats or promises of any kind. Relator answered both queries in the negative. In response to further questioning by Judge Beloff, relator informed the court that he was unemployed at the time of the robberies but had held the position of a non-teaching assistant at the Bok Vocational School for a year sometime prior to the events leading up to his trial. *fn6" At no time did the court or Mr. Booker inform relator or ask relator if he was aware of the maximum sentence which might be imposed on his plea of guilty. Rather, Judge Beloff, after conducting a further examination into relator's ability to meet the job qualifications for a non-teaching assistant, announced his decision to arraign the defendant.

 In testimony adduced to provide the factual basis for relator's guilty plea, Irving Swann, the night bartender and manager of the Most Complete Bar, 2148 Ellsworth Street, Philadelphia, testified that on the evening of November 1, 1971, relator and two other individuals entered his bar and robbed him of approximately $48.00. Mr. Swann testified that relator, whom he had known for fifteen years, held an instrument of some sort with which he threatened to shoot Mr. Swann. Comm.N.T. 9-12. Horace Money, the day bartender at the Most Complete Bar, testified that during the afternoon of November 8, 1971, relator again held up this bar. Relator, whom he had served as a customer on numerous occasions, had an accomplice and struck Mr. Money over the head. Comm.N.T. 18-19. Mr. Swann testified that relator returned to the Most Complete Bar on the evening of November 8, 1971, and again attempted to rob him. According to Swann, relator was again holding an instrument, which appeared to Mr. Swann to be a gun wrapped in a newspaper, *fn7" and again threatened to shoot him. Mr. Swann handed over $25.00 to relator. When relator reached into the cash register, Mr. Swann knocked the instrument from his hands and proceeded to subdue him. Officer Dennis Lane responded to a call to the police and made the arrest.

 B. The Salient Evidence Adduced at the Hearing Before This Court

 (1) Relator's Knowledge of the Maximum Potential Sentence (The Bryant Conversation)

 As we have noted above, one reason for scheduling an evidentiary hearing in the matter was to determine whether relator had been advised as to his possible jeopardy by reason of a guilty plea. The testimony on this subject from James Bryant, the Assistant District Attorney assigned to Judge Beloff's courtroom, *fn8" supplied the missing link. It did so in such an utterly bizarre fashion, however, that it created other problems. While we ordinarily eschew verbatim excerpts from transcript, no summary would do Mr. Bryant's testimony justice:

 
BY MR. BRYANT:
 
So I walked over. I said, do you mind if I talk to the defendant?
 
And he said, no.
 
So Harvey [Booker, the relator's trial counsel] was there and the defendant was there.
 
* * *
 
I said to the defendant, do you want a jury trial?
 
And he said, yes, I do.
 
I said, that is fine ...

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