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COMMONWEALTH PENNSYLVANIA v. THEODORE DOWLING (11/18/78)

SUPREME COURT OF PENNSYLVANIA


decided: November 18, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
THEODORE DOWLING, APPELLANT

No. 176, January Term, 1976, Appeal from the Judgment of Sentence of the Philadelphia Court of Common Pleas on Bill Nos. 2141 and 2142 of March Term, 1975

COUNSEL

Richard D. Atkins, Philadelphia, for appellant.

Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Dep. Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., James Garrett, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Nix, J., files a dissenting opinion in which Eagen, C. J., joins.

Author: Pomeroy

[ 482 Pa. Page 609]

OPINION

Appellant, Theodore Dowling, was arrested on February 24, 1975 and charged with criminal homicide and conspiracy in the beating death of one Virgil Free. Appellant retained counsel and, on August 22, 1975, entered a plea of guilty on both counts in return for the Commonwealth's certification that the killing did not rise above murder of the third degree. Following a colloquy conducted by the trial judge, the plea was accepted. A degree of guilt hearing resulted in a finding that the killing was in fact murder of the third degree. Although the district attorney recommended that the sentence not exceed a term of imprisonment of five to fifteen years, the trial court imposed concurrent prison sentences of three to twenty years on the murder charge and three to ten years on the conspiracy count. This appeal followed.*fn1 Dowling points to several imperfections in the plea colloquy*fn2 which, he argues, render the plea invalid. We hold that these assignments of error have been waived; the judgments of sentence will be affirmed.

Our cases have iterated and reiterated that the proper procedure by which to attack a guilty plea is to file in the trial court which accepted the plea a petition to withdraw it. See, e. g., Commonwealth v. Hunter, 468 Pa. 7, 359 A.2d 785

[ 482 Pa. Page 610]

(1976); Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975); Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975). See also Commonwealth v. Beatty, 474 Pa. 104, 376 A.2d 994 (1977); Commonwealth v. Rodgers, 465 Pa. 379, 384, 350 A.2d 815 (1976) (concurring opinion of Pomeroy, J. joined by Manderino, J.); ABA Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty, ยง 2.1 (Approved Draft, 1968).*fn3 It is true that at times in the past, this Court has considered challenges to the validity of a guilty plea despite the absence of any attempt to obtain relief in the trial court. See, e. g., Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976); Commonwealth v. Ramos, 468 Pa. 404, 364 A.2d 257 (1976); Commonwealth v. Hunter, supra; Commonwealth v. Schork, 467 Pa. 248, 356 A.2d 355 (1976); Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976). Those cases, however, were in a period preceding our decision in Commonwealth v. Lee, supra, when there was some confusion as to the proper forum to entertain such a claim. See Commonwealth v. Beatty, supra, 474 Pa. at 111, 376 A.2d 994 (concurring opinion of Roberts, J.); Commonwealth v. Rodgers, supra, 465 Pa. at 384, 350 A.2d 815 (concurring opinion of Pomeroy, J. joined by Manderino, J.); Commonwealth v. Lee, supra. In those cases, moreover, the asserted errors were capable of resolution on the basis of the record on appeal. See, e. g., Commonwealth v. Hunter, Page 611} supra; Commonwealth v. Rodgers, supra (concurring opinion of Pomeroy, J. joined by Manderino, J.); Commonwealth v. Lee, supra. Thus those decisions could be justified in terms of judicial economy and fairness despite the procedural irregularities. The decision in Commonwealth v. Lee, however, removed any doubt that the trial court was the proper tribunal, in the first instance, to resolve allegations of error concerning the validity of the guilty plea and that such matters should not be raised for the first time on appeal.

In the case at bar, Dowling's plea was entered five months subsequent to the date of the Lee decision and the appeal was filed some nine months after that decision. Appellant was therefore on notice that allegations concerning deficiencies in the plea procedure would not be considered if raised for the first time on appeal. See Commonwealth v. Beatty, supra.*fn4

Judgments of sentence affirmed.

NIX, Justice, dissenting.

I disagree with the majority's conclusion that because appellant did not petition the lower court to withdraw his guilty plea, the adequacy of the guilty plea colloquy is an issue which has not been preserved for our review. I therefore dissent.

I do not share the majority view that this Court's decision in Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975) removed all doubt that challenges to guilty plea colloquies would be considered waived on appeal if an appellant had not petitioned the lower court to withdraw the plea. The

[ 482 Pa. Page 612]

    footnote in Lee upon which the majority relies conceded that the law was unclear as to the proper procedural method to be used for raising and preserving such challenges. Id. at 327n. , 333 A.2d at 750n. . That same footnote also conveyed at least the implicit suggestion that a "definitive procedural rule" might be necessary and forthcoming in order to clarify this point of practice. Id. In fact, that is precisely how this Court ultimately resolved the uncertainty. See Pa.R.Crim.P. 321 (effective September 1, 1977). Far from clarifying the law on this point, the Lee footnote clouded the area by suggesting that a challenge to the sufficiency of the colloquy, which could be resolved by resort to the Record, would be considered by this Court even in the absence of a petition to withdraw. See Commonwealth v. Lee, supra. In light of the murky state of the law existing at the time appellant entered his plea, I cannot conclude that counsel should have been on notice that a petition to withdraw the plea was a procedural prerequisite to a challenge of the plea's validity on appeal. In my judgment, appellant's contentions should have been considered on the merits.


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