APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 76-1377)
Before Hunter, Weis and Garth, Circuit Judges.
This appeal from denial of habeas corpus relief questions whether in a nonjury criminal proceeding the defendant was afforded adequate constitutional protection in entering what was labeled a nolo contendere plea. Recent cases delineate what is encompassed in a true nolo plea, and suggest that the same standards apply in entering it as in the case of a guilty plea. But because of the unusual circumstances of the case Sub judice, we hold that the defendant's conviction was not vitiated by lack of advice on the record of the maximum sentence to which he was exposed. Accordingly, we affirm the district court's denial of relief.
The defendant was sentenced by the Court of Common Pleas of Philadelphia, Pennsylvania on charges of forcible rape, burglary and aggravated robbery growing out of an assault on June 26, 1971. He later petitioned for relief under the Pennsylvania Post Conviction Hearing Act on the ground that his nolo contendere plea had not been voluntarily and intelligently entered. The common pleas court granted a hearing and denied the petition. After exhausting state appellate remedies, he sought a writ of habeas corpus in the district court which, after a hearing, refused to grant relief.
Before trial in the state court, defendant was given a psychiatric evaluation and found to be competent to assist in his own defense, although suffering from a "major mental illness." The report stated that he was a danger to women, tending to aggressively vent his hostility on them, and was therefore a threat to the community.
A motion to suppress a confession was denied after a hearing and the case was listed for trial on July 18, 1972. At the time set, defense counsel told the trial judge that the defendant wished to plead guilty. Counsel then informed the defendant in open court of his rights to either a jury or nonjury trial, to cross-examine prosecution witnesses, present witnesses in his own defense, and advised him of the state's burden of proof.*fn1 Counsel also told the defendant that if a guilty plea were entered, the district attorney would "just summarize the evidence against you and then it would be up to Her Honor to sentence you; do you understand that?" When asked if he remembered the crime, the defendant said he did not. The trial judge stated that because the defendant did not recall the event, she would allow the guilty plea to be withdrawn so that the case could go to trial. Defense counsel said, "in that case we would prefer to enter a plea of nolo contendere and to let the witnesses speak from the stand and give their testimony, Your Honor."*fn2 After the defendant insisted that he wanted to plead guilty, counsel explained the nolo contendere plea:
"In effect what you are saying to the Court is that you do not know whether or not you have committed this crime, you are throwing yourself on the mercy of the Court, she will listen to the evidence; do you understand that?"
The defendant answered, "Yes, I understand."
The Court: "It is a Latin word that says: I don't contest it."
The Prosecutor: "In effect, a guilty plea."
The Court: "It is a Latin phrase. He is a very intelligent man, he has got a good school average according to this report."
When the charges were read and pleas entered, the trial judge said, "I would like to hear the Commonwealth witnesses very fully in this case, especially (the victim)."
The victim testified that the defendant gained entrance to her home through an unlocked door, raped her and took $20 from her. The house was lighted and she was able to make a positive identification of him. A neighbor testified that he had seen the defendant jump over the backyard fence that evening and notified police when the same man appeared in the neighborhood a week later. The police recounted the details of the defendant's arrest near the victim's home about a week after the crime and read a confession he had made a few hours after being apprehended.
Although offered the opportunity, defense counsel declined to question any of the witnesses. At the conclusion of the testimony, the prosecutor said, ...