Denis James Lawler, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Price, J., concurs in the result. Van der Voort, J., dissents.
[ 254 Pa. Super. Page 55]
This is a most unusual case. At a PCHA hearing, appellant's trial counsel all but admitted that he had been ineffective in failing to advise appellant fully on the advisability of accepting a plea bargain. Under the circumstances of this case, we agree with counsel; and while we regret his ineffectiveness, we commend his candor.
In 1970 appellant, who was then 18 years old, was convicted by a jury on two indictments for aggravated robbery*fn1 and sentenced to two consecutive terms of five to twenty years. We affirmed per curiam. Commonwealth v. Napper, 218 Pa. Super. 809, 275 A.2d 376 (1971). The Supreme Court denied appellant's petition for allowance of appeal on August 4, 1971.
[ 254 Pa. Super. Page 56]
On February 23, 1976, appellant filed a petition under the Post-Conviction Hearing Act*fn2 in which he alleged that his trial counsel had been ineffective. The petition was denied, after a hearing, on June 3, 1976. This appeal followed.
Appellant argues that his counsel should have advised him more fully of the advantages and disadvantages of a plea bargain offered by the Commonwealth.*fn3 By trial counsel's testimony at the PCHA hearing, the facts surrounding the bargain were as follows. Before trial the district attorney offered to recommend a sentence of twelve or eighteen months (counsel was unsure which) to three years total sentence on both indictments.*fn4 Counsel advised appellant of the terms of the offer, but neither recommended that appellant should accept it, nor gave any advice on the advisability of accepting it. Appellant told counsel that if the offered sentence would mean "state time" (more than two years) he didn't want to plead guilty. After pleading not guilty, appellant went to trial, with the consequences reviewed above.
In deciding whether counsel was ineffective, we first ask whether the action or strategy that counsel decided against
[ 254 Pa. Super. Page 57]
or neglected had arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). The question presents little difficulty here. A recommendation of twelve or eighteen months to three years is quite a "bargain" on indictments that could bring -- and here did bring -- a total sentence of ten to forty years. To be sure, if a defendant and his counsel think there is some chance of winning the case at trial, the bargain becomes less advantageous. In such a case we would have a difficult time reviewing the arguable merit of the bargain. Much would depend on the circumstances prevailing at the time and on counsel's judgment of the defendant's chances ...