decided: June 29, 1977.
COMMONWEALTH OF PENNSYLVANIA
KENNETH ROBERT BABLE, APPELLANT
Appeal from the Order of the Court of Common Pleas, Criminal Division, of Armstrong County, at No. 49 March Term, 1973.
Joseph E. Breman, Kittanning, for appellant.
James H. Owen, Assistant District Attorney, and Joseph A. Nickleach, District Attorney, Kittanning, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Watkins, President Judge, and Cercone and Van der Voort, JJ., dissent.
[ 248 Pa. Super. Page 498]
Appellant contends that the on-the-record colloquy prior to his guilty plea was deficient because the court failed both to establish a factual basis for the plea and to explain the elements of the offense charged.*fn1 He also alleges that his trial counsel was ineffective for failing to challenge the
[ 248 Pa. Super. Page 499]
plea on direct appeal from the judgment of sentence. We agree and, therefore, vacate the judgment of sentence and permit appellant to withdraw his guilty plea.
Appellant stated that on December 28, 1972, while at the home of appellant's father, appellant and a companion consumed alcoholic beverages during most of the day. On their way to Pittsburgh, they stopped at several taverns where they continued drinking. The men became lost and stopped the car in Kittanning, Armstrong County, where they entered the Agway building and removed several items. The police, who were summoned by an alarm, arrested appellant and his companion on the above date.
[ 248 Pa. Super. Page 500]
On December 11, 1973, appellant entered a plea of guilty to burglary*fn2 which the court accepted. On April 4, 1974, the lower court sentenced appellant to a term of imprisonment of four to twelve years. On December 2, 1974, appellant filed a petition under the Post Conviction Hearing Act*fn3 (hereinafter PCHA). The court appointed counsel to represent appellant and he filed an amended PCHA petition. On March 24, 1976, a PCHA hearing was held before the same judge who accepted appellant's guilty plea. The court denied post conviction relief and this appeal followed.
Appellant contends that his original counsel was ineffective for failing to raise the inadequacy of his guilty plea on direct appeal.*fn4 Section three of the PCHA requires that:
"To be eligible for relief under this act, a person must initiate a proceeding by filing a petition under Section 5 and must prove the following:
"(d) That the error resulting in his conviction and sentence has not been finally litigated or waived."
Section 4 of the PCHA defines "waived" as follows:
"(b) For the purposes of this act, an issue is waived if:
"(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
"(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
[ 248 Pa. Super. Page 501]
"(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure."
It is well-settled that ineffective assistance of counsel does constitute an extraordinary circumstance which entitles one to PCHA relief. Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973); Commonwealth v. Green, 234 Pa. Super. 236, 338 A.2d 607 (1875). "If in fact appellant's contentions would have required a reversal if raised on direct appeal, then a fortiori, failure to raise those claims on appeal was ineffective assistance of counsel. . . . Thus, we must consider the merits of appellant's new contentions to decide whether his original counsel's failure to pursue them on direct appeal amounts to ineffective assistance of counsel." Commonwealth v. Danzy, 234 Pa. Super. 633, 636, 340 A.2d 494, 496 (1975).
Turning to the merits of appellant's claim, we find that "Rule 319(a) of the Pennsylvania Rules of Criminal Procedure*fn5 precludes acceptance of a guilty plea unless a colloquy appears on the record which establishes that the defendant's plea is 'voluntarily and understandingly made.' . . . [I]n order to insulate pleas from attack, a colloquy should be conducted which satisfie[s] the court that the 'defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences'. Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 106, 237 A.2d 196, 198 (1968)." Commonwealth v. Maddox, 450 Pa. 406, 407-408, 300 A.2d 503, 504 (1973); see also, Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 (1973).
[ 248 Pa. Super. Page 502]
It is also clear that before accepting a plea of guilty, the trial court must satisfy itself that there is a factual basis for the plea. Commonwealth v. Maddox, supra; Commonwealth Page 502} ex rel. West v. Rundle, supra. In Commonwealth v. Ingram, 455 Pa. 198, 203, 316 A.2d 77, 80 (1974), the Supreme Court held that: "Our finding of a sufficient 'factual basis' does not necessarily mean that defendant 'understood the nature of the charges against him'. While it is permissible for a defendant to enter a valid guilty plea even if he does not expressly admit every element of the crime, a valid guilty plea may not be accepted in the absence of a demonstration of defendant's understanding of the charges. . . . In order to demonstrate that a defendant possesses such understanding, he certainly must be told more than just that he has been charged with murder or robbery, for example. While such terms clearly connote some meaning to the layman, this meaning does not always embrace the basic legal elements of the crime. If this were not the case, there would be no need for instructions to a jury on such points, for certainly, an average defendant cannot be presumed to understand more than an average juror. Thus, for an examination to demonstrate a defendant's understanding of the charge, the record must disclose that the elements of the crime or crimes charged were outlined in understandable terms."
Finally, in Commonwealth v. Minor, 467 Pa. 230, 235, 356 A.2d 346, 348 (1976), the Supreme Court held that: "[t]he defendant's understanding of the nature and elements of the charges against him has long been an essential part of a valid guilty plea in Pennsylvania. In this respect Ingram cannot be said to be new law."
Thus, under Pa.R.C.P. 319(a) and Pennsylvania case law, the trial court must establish on the record both a factual basis for the plea and an understandable outline of the elements of the offense charged.
In the instant case, the following colloquy occurred at the guilty plea:
"Q. Do you understand the nature of this charge that's been lodged against you, that is, burglary?
"A. Yes, sir.
[ 248 Pa. Super. Page 503]
"Q. You are charged with entering a building here in East Franklin Township, which is just across the bridge from Kitanning Borough here -- entering a building owned or occupied by Agway, Inc. and with the intent to commit a felony therein.
"A. Yes, sir.
"Q. Well, Mr. Bable, what do you say you did here that caused these charges to be lodged against you?
"A. Well, I was pretty intoxicated, visiting my father in Vandergrift. I was visiting my father in Vandergrift, and we was drinking at a couple of bars and pulled into this place to rest, more or less intoxicated.
"Q. Well, Mr. Bable, did you or did you not enter this building?
"A. Yes, sir.
"Q. What did you do inside that building?
"A. I really don't remember, sir.
"Q. Did you have with you any implements or tools of any kind?
"A. No, sir.
"Q. What time of day was this?
"A. Six-thirty, sir."
Preliminarily, we note that the trial court failed to obtain an adequate factual basis for the plea because it did not ascertain what appellant's conduct was while in the Agway building. Further, the lower court did not adequately explain the elements of the offense of burglary to appellant. Under the Penal Code, burglary was defined as follows:
Whoever, at any time, wilfully and maliciously, enters any building with intent to commit any felony therein, is guilty of burglary, a felony, and upon conviction thereof, shall be sentenced to pay a fine not exceeding ten thousand dollars ($10,000), or to undergo imprisonment, by separate or solitary confinement at labor, not exceeding twenty (20) years, or both.
[ 248 Pa. Super. Page 504]
It is clear that the lower court did not state that appellant had to have the specific intent to commit a felony at the time he entered the building nor did it define the term felony for appellant. While it is true that the term felony may connote some meaning to appellant, it is obvious that the average layman will not understand its legal meaning. Therefore, We hold that counsel was ineffective for failing to take a direct appeal and that the guilty plea in the instant case was not knowingly and intelligently entered because the trial court failed to outline the elements of the crime charged in understandable terms.
We vacate the judgment of sentence and permit appellant to withdraw his guilty plea.