No. 514 October Term, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Northampton County, dated November 2, 1976, at No. 280 October Term, 1974.
Robert M. Davison, Bethlehem, for appellant.
James J. Narlesky, Assistant District Attorney, Easton and John E. Gallagher, District Attorney, Easton, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Hoffman, J., files a dissenting opinion, in which Cercone and Spaeth, JJ., join.
[ 252 Pa. Super. Page 289]
This appeal arises from the denial of appellant's petition to withdraw his guilty plea to charges of robbery, aggravated assault, and conspiracy. On advice of counsel, appellant pleaded guilty, and was subsequently sentenced to seven and one-half to fifteen years imprisonment, costs, and full restitution. On direct appeal, appellant raised the claim that guilty-plea counsel was ineffective in failing to inform him that intoxication was a possible defense to the robbery charge. We remanded for a determination of whether counsel was aware of appellant's intoxication and whether counsel's actions in that respect had any reasonable basis designed to effectuate appellant's interest. Commonwealth v. Santiago, 240 Pa. Super. 63, 361 A.2d 732 (1976). We affirm.
Pursuant to our remand order, new counsel appointed to represent appellant petitioned to withdraw the plea. Appellant refused to testify at either hearing on the petition, expressing dissatisfaction with two proposed interpreters, the second of which was appointed at the behest of appellant's new counsel. However, Philip Lauer, guilty-plea counsel, did testify, and we are satisfied from his testimony that he was aware of appellant's alleged intoxication and that his action in entering the plea had a reasonable basis designed to effectuate his client's interest.
Attorney Lauer testified that appellant had little recollection of the crimes because of his intoxication. From his own investigation, counsel learned that two victims were able to identify the defendant, and that defendant was apprehended within thirty minutes of the robbery with the money and an item from the store. Subsequent investigation revealed appellant's lengthy criminal record. Furthermore, counsel testified that at the time of the plea, he believed voluntary intoxication not to be a defense to robbery, based upon Commonwealth v. Tarver, 446 Pa. 233, 284 A.2d 759 (1971).
[ 252 Pa. Super. Page 290]
In light of these considerations, counsel advised appellant to plead guilty.
Appellant contends that this advice deprived him of the effective assistance of counsel, because the intoxication defense was available to him, and he was not so advised. There is no merit to this claim. Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975), interpreting Section 308 of the Crimes Code, was not decided until March 18, 1975, three weeks after appellant entered his plea. Until that time, Tarver, which specifically held that voluntary intoxication is no defense to robbery, controlled. Under these circumstances, we cannot hold counsel ineffective for failure to anticipate future legal developments, or failure to advise appellant of a non-existent defense.
Moreover, even if we assume that an intoxication defense had been available to appellant, counsel's course of action in advising a plea formed no basis for a finding of ineffective counsel. Counsel explored the possibility of an intoxication defense with appellant, and in light of the evidence against him and his prior criminal record, advised a guilty plea. Consequently, we hold that counsel's actions had a reasonable basis designed to effectuate his client's interest, and were not therefore constitutionally ineffective. ...