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COMMONWEALTH PENNSYLVANIA v. DANIEL J. MCCUSKER (11/22/76)

SUPERIOR COURT OF PENNSYLVANIA


decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL J. MCCUSKER, APPELLANT

Appeal from Judgment of Sentence of the Court of Common Pleas of Huntingdon County at No. 175 Criminal Action, 1975. No. 1154 October Term, 1976.

COUNSEL

Joseph W. Mullin, Public Defender, Huntingdon, for appellant.

Stewart L. Kurtz, II, Huntingdon, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Watkins, President Judge, joins.

Author: Hoffman

[ 245 Pa. Super. Page 403]

Appellant seeks to challenge for the first time on appeal the adequacy of the colloquy prior to his plea of nolo contendere to the charges of aggravated assault*fn1 and resisting arrest.*fn2

On August 30, 1975, at approximately 1:30 a. m., appellant entered the Huntingdon Borough police station to report the theft of his automobile. Subsequent investigation by the police revealed that appellant's vehicle had been involved in a hit-and-run accident. The officer on duty informed appellant that he would probably be arrested and charged with failure to stop at the scene of an accident.*fn3 A scuffle ensued, and appellant injured two officers before he was subdued. The testimony of the officers during appellant's plea colloquy on December 10, 1975, indicated that appellant might have been intoxicated on the night in question. Nevertheless, the court below accepted appellant's plea of nolo contendere; and, on February 5, 1976, it sentenced appellant to serve 2 to 4 years' imprisonment. Appellant did not petition the lower court for permission to withdraw his plea, but rather, appealed directly to this Court.

Appellant has made the common mistake of attacking the validity of his plea on direct appeal without first filing a petition to withdraw the plea with the lower court to which the plea was made. See Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975). In Commonwealth v. Roberts, supra, this Court mandated strict compliance with the requirement that the appellant file a petition to withdraw. For appeals filed prior to the filing date of Roberts, December 1, 1975, this Court

[ 245 Pa. Super. Page 404]

    has generally remanded cases involving challenges to guilty pleas to permit appellants an opportunity to file a petition to withdraw.

This appeal was filed on March 5, 1976. Because appellant has not filed a petition to withdraw with the lower court and because this appeal was filed well beyond the effective date of the rule announced in Roberts, we must hold that appellant has waived his right to raise issues in this Court which have not been presented to the court below. Cf. Commonwealth v. Reid, 458 Pa. 357, 358, 326 A.2d 267 (1974).

Judgment of sentence affirmed.

SPAETH, Judge, dissenting:

It is undeniable that appellant has failed to comply with our rule, announced one year ago in Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975), that any challenge to the validity of a guilty plea must begin with a petition to withdraw the plea in the court below.*fn1 I do not agree, however, with the majority's conclusion that in consequence appellant has waived his right to pursue his claim of an inadequate colloquy.

The rule we announced in Roberts was based on the Supreme Court's statement that "in cases . . . where the only challenge to the proceedings in the trial court is directed to the validity of a guilty plea itself, the proper procedure is first to file with that court a petition to withdraw the plea." Commonwealth v. Lee, 460 Pa. 324, 327

[ 245 Pa. Super. Page 405]

    n., 333 A.2d 749, 750 n. (1975). We said: "Due to the overwhelming frequency with which the Superior Court is confronted with this issue, we deem it necessary to now require strict compliance with this procedure." Commonwealth v. Roberts, supra, 237 Pa. Super. at 338 n. 1, 352 A.2d at 141 n. 1.

However, neither we nor the Supreme Court has stated what consequence an appellant will suffer for failure to comply with the rule thus announced. In Lee the Supreme Court allowed the appellant to pursue his appeal:

Because of the uncertainty which has prevailed as to the appropriate method by which to attack a guilty plea, as well as the absence of a definitive procedural rule on the subject, we will consider the merits of appellant's claim.

460 Pa. at 327 n., 333 A.2d at 750 n.

Two, alternative, consequences may be supposed: (1) all claims that could have been raised in the petition to withdraw the guilty plea will be deemed waived; or (2) the appellate court will never address the merits of a claim that a guilty plea was invalid but will instead automatically remand to allow the appellant to file a petition to withdraw the plea. In practice, as the majority notes, we have generally remanded.*fn2 That does not help here, however, for those cases were appeals filed before the filing date of Roberts. Here we have the first case filed after the filing date of Roberts.

In my opinion, we should do better to hold that a case will be automatically remanded when there has been a failure to file a petition to withdraw a plea. Thereby we should in many cases save ourselves, and the parties, a

[ 245 Pa. Super. Page 406]

    great deal of time, for on remand a petition to withdraw would be filed and the lower court could correct its error, which would end the case. More important, perhaps, we should also avoid numerous, quite unnecessary, complications, which the majority does not appear to have anticipated.

It is easy to construe the cases, as the majority does, as indicating that the consequence of failing to file a petition to withdraw should be waiver rather than automatic remand. For example, in Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975), the Supreme Court buttressed its reasoning as to the "proper practice" by drawing an analogy to Pa.R.Crim.P. 1123, which made mandatory the filing of post-verdict motions. Id. at 531 n. 1, 333 A.2d at 900 n. 1. That analogy implies that the consequence suffered for failure to petition to withdraw a guilty plea will be the same as that suffered for failure to file post-verdict motions, viz. that all claims an appellant could have raised are waived. Similarly, we stated in Roberts that

[t]he purpose behind this procedure can best be illustrated by looking to the area of post-verdict motions. See Pa.R.Crim.P., Rule 1123 and comments thereto. Pennsylvania appellate courts have recently taken the uncompromising position that when an issue is not raised in post-verdict motions it will not be considered on appeal. [Citations omitted.] The reason for this position is that "[t]he swift and orderly administration of criminal justice requires that lower courts be given the opportunity to rectify their errors before they are considered on appeal." Commonwealth v. Reid, 458 Pa. 357, 358, 326 A.2d 267, 267 [ sic ] (1974).

The same principles which mandate that issues not raised in post-verdict motions will not be considered on direct appeal mandate that an attack on a guilty plea on direct appeal must be preceded by the filing of a petition to withdraw such plea with the court below.

[ 245 Pa. Super. Page 407]

The enforcement of this procedure will give the court which accepted the plea the opportunity to allow the withdrawal of the plea if it was in fact not voluntarily and understandingly made. If the defendant remains unsatisfied with the lower court's disposition of his petition to withdraw his guilty plea, then at that point the issue would be properly preserved and ripe for appellate review. Strict adherence to this procedure could, indeed, preclude an otherwise costly, time consuming, and unnecessary appeal to this court.

237 Pa. Super. at 338-39, 352 A.2d at 141.

In addition, we have in three dicta said by negative implication that waiver would be the consequence of failing to follow the correct procedure. Commonwealth v. Harrsch, 245 Pa. Super. 411, 369 A.2d 470 (1977); Commonwealth v. Riley, 239 Pa. Super. 488, 361 A.2d 423 (1976); Commonwealth v. Velasquez, 238 Pa. Super. 368, 357 A.2d 155 (1976).

For the purposes of discussion only,*fn3 I am willing to assume that both the majority's construction of the cases and our dicta are correct. Even so, the majority's own reasoning shows that we cannot find that appellant here has waived his right to challenge the validity of his plea of nolo.

When a defendant fails to file post-verdict motions, "for such a waiver to be effective, the record must affirmatively demonstrate that the appellant was aware of his right to file post trial motions and that he knowingly and intelligently decided not to do so." Commonwealth v. Schroth, 458 Pa. 233, 235, 328 A.2d 168, 169 (1974). "Because [post-verdict] motions are a critical step in the post-conviction review process, we will scrutinize closely

[ 245 Pa. Super. Page 408]

    any waiver of the right to file them in order to ensure that the defendant has acted voluntarily and with a full understanding of his rights." Commonwealth v. Coleman, 458 Pa. 324, 325-26, 327 A.2d 77, 78 (1974). In general, we have taken such statements to mean that at a minimum, the record must show compliance with the requirements of Pa.R.Crim.P. 1123 (b) and (c).*fn4 See Commonwealth v. Miller, 232 Pa. Super. 171, 335 A.2d 528 (1975).*fn5

Since the majority relies on the analogy between the failure to petition to withdraw a guilty plea and the failure to file post-verdict motions, it should by parity of reasoning insist on the same safeguards in each case. Therefore: before an appellate court may find that a defendant has waived his right to challenge the validity of a guilty plea, it must find on the record that he knowingly and intelligently waived his right to petition to withdraw

[ 245 Pa. Super. Page 409]

    the plea. As with post-verdict motions, at a minimum the appellate court must see on the record that the lower court has advised the defendant of his right to petition to withdraw his plea of guilty, of his right to the assistance of counsel in filing such a petition, and of the consequence of not filing such a petition.*fn6

It may be objected that this would burden the trial bench with yet another question that must be asked a defendant at a guilty-plea colloquy. I grant that that would be so, but it would be so because of the majority's decision, not mine. Furthermore, it cannot be otherwise -- at least, it cannot be if the majority insists upon the consequence of waiver. As with the application of the waiver doctrine to post-verdict motions: if the appellate courts choose to impose upon defendants the requirement that they either take a certain procedural step below or suffer the consequence that they will have waived important rights on appeal, then the appellate courts must also impose upon the trial bench the duty of ensuring that those rights are foregone only by informed defendants.

In the present case, although the lower court's colloquy with appellant was extensive, at no point did it advise appellant of his right to file a petition to withdraw a guilty plea, and of the consequences of not filing such a petition.*fn7 Indeed, the court's comments (which were quite correct according to the practice prior to Lee and Roberts) implied that there was no rule that appellant

[ 245 Pa. Super. Page 410]

    must first petition to withdraw his plea or suffer waiver.*fn8 It follows that the majority cannot determine from the record whether appellant knowingly and intelligently waived his right to petition to withdraw his plea. The remedy should therefore be the same as that applied in cases involving failure to file post-verdict motions: the judgment of sentence should be vacated and the record remanded for a determination, following an evidentiary hearing if necessary, of whether appellant's waiver of his right to petition to withdraw his plea of nolo contendere was voluntary and intelligent. If there was no such waiver, appellant should be granted an opportunity to petition to withdraw his plea. If such a waiver is found, the judgment of sentence should be reinstated. Following disposition by the trial court, either side would be entitled to file a new appeal. See Commonwealth v. Tate, 464 Pa. 25, 346 A.2d 1 (1975).*fn9

[ 245 Pa. Super. Page 411]

To me, as I have indicated at the outset of this opinion, all of this seems complicated and unnecessary. I should simply remand with leave to appellant to file a petition to withdraw his plea.


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