No. 1299 October Term, 1979, Appeal from Order of the Court of Common Pleas of Montgomery County, Criminal Div. at Nos. 4602-77, 464-78 and 617-78.
Arthur J. King, Assistant Public Defender, Norristown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Van der Voort, J., files a concurring and dissenting opinion.
[ 287 Pa. Super. Page 136]
This is an appeal from an order denying, without a hearing, appellant's Post Conviction Hearing Act petition. Appellant pleaded guilty to robbery, burglary, aggravated assault, possession of an instrument of crime, conspiracy, forgery, and credit card violations. Appellant's counsel at the guilty plea proceeding never filed a motion to withdraw the pleas, nor did he perfect an appeal. With the assistance of new counsel, appellant filed a petition under the Post Conviction Hearing Act, alleging that his guilty plea counsel was ineffective in not filing a motion to withdraw the pleas, despite appellant's request that he do so, and that his pleas were not voluntary because counsel induced him to plead by assuring him that he would receive only a probationary sentence and an order requiring him to submit to an intreatment drug program. We have concluded that the sentence for aggravated assault must be vacated because the record discloses that appellant, in fact, never pleaded guilty to that charge. We have further concluded that an evidentiary hearing should be conducted to determine whether appellant's guilty plea counsel was ineffective.
The guilty plea hearing was held on April 25, 1978. The Commonwealth's witness Filen Kloures testified that appellant struck her husband with a gun during the course of a burglary. N.T. April 25, 1978 at 22. This testimony provided the factual basis for appellant's pleas of guilty to the charges of robbery and aggravated assault. Appellant, however, denied that he ever struck the victim with a gun. The issue that we must decide is whether this denial affected appellant's pleas.
[ 287 Pa. Super. Page 137]
The charge of robbery was in two counts. The first count alleged that in the course of committing a theft, appellant inflicted serious bodily injury on the victim; the second count alleged that in the course of committing a theft, appellant threatened the victim with, or intentionally put him in fear of, immediate serious bodily injury.
Appellant was first questioned about the first count, as follows:
BY MS. HAGARTY [assistant district attorney]:
Q. Mr. Paige, you are charged first of all in this case with robbery. Robbery is when somebody in the course of committing a theft inflicts serious bodily injury upon another person or puts that person in fear of serious bodily injury or threatens to commit a felony of the first or second degree or inflicts bodily injury.
Q. In this case the Commonwealth alleges that in fact on November 2, 1977 while committing a theft in the home of Mr. and Mrs. Kloures in Ambler, you did inflict serious bodily injury upon Charles Kloures by hitting him over the head with a gun.
Do you understand that you are entering a plea of guilty to that charge?
A. I don't remember that. I don't know nothing about no gun. I don't remember that.
Q. You don't remember hitting anybody over the head with a gun?
Q. Do you understand that your plea of guilt is that you are admitting that?
A. I am not pleading about no gun.
N.T. April 25, 1978 at 44-45.
[ 287 Pa. Super. Page 138]
When it thus became apparent that appellant would not plead guilty to the first count, in that he would not admit that in the course of committing a theft, he had inflicted serious bodily injury on the victim, the assistant district attorney ...