NO. 1077 April Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division of Allegheny County at No. CC7608818 and No. 7608698.
Paul R. Gettleman, Zelienople, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Spaeth, Johnson and Popovich, JJ. Popovich, J., files a dissenting opinion.
[ 297 Pa. Super. Page 42]
This is an appeal from an order denying relief under the Post Conviction Hearing Act*fn1 without a hearing. The issues are whether the guilty plea colloquy was defective, and if so, whether appellant should be granted a new trial. The plea was entered as the result of a plea bargain. We find that the colloquy was defective. Because the record does not reveal whether the plea bargain was favorable and whether appellant understood and was satisfied to accept it rather than go to trial, we remand for an evidentiary hearing.
Appellant was charged with twenty counts of theft by deception,*fn2 twenty counts of passing bad checks,*fn3 one count of criminal conspiracy,*fn4 and one count of theft by receiving stolen property.*fn5 On March 16, 1977, he pleaded guilty to all counts except the one count of theft by receiving stolen goods, which was dismissed pursuant to a plea bargain. The lower court sentenced him to two concurrent five-year terms of probation and ordered him to pay the costs of prosecution. Appellant took no appeal from the judgment of sentence.
[ 297 Pa. Super. Page 43]
Appellant was subsequently found to be in violation of his probation and, on November 13, 1978, was sentenced to serve a term of eleven and one-half to twenty-three months imprisonment. Sometime later*fn6 appellant, filed a petition under the Post Conviction Hearing Act alleging that he had been denied his "constitutional right to representation by a competent lawyer," that his guilty plea had been unlawfully induced, and that he "was not fully advised of all the rights [he] would be giving up if [he] pled guilty." On November 8, 1979, the lower court denied appellant's petition, without a hearing, by an opinion and order that read in their entirety as follows:
AND NOW, to wit, this 8th day of November, 1979, it appearing to the Court that petitioner's Application for Post Conviction Relief is deficient on its face, that the issues therein raised are without merit, have been waived, and are not supported by the record, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT petitioner's Application for Post Conviction Relief is denied.
It is from this order that appellant appeals.
Appellant contends that the March 16, 1977, guilty plea colloquy was defective and that his former counsel was ineffective in failing to file a motion to withdraw the plea because of the defective colloquy. It is clear that the colloquy was defective, for appellant was not advised on the record of his right to a jury trial or his right to the presumption of innocence, as required by Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) and Pa.R.Crim.P. 319(a).
When a defective guilty plea colloquy is attacked on direct appeal, we must reverse the conviction and award a new trial; we do not remand for an evidentiary hearing because, the defect appearing on the face of the record, a hearing would be superfluous:
In Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976), this court stated:
[ 297 Pa. Super. Page 44]
"The Comments to Rule 319(a) of the Pennsylvania Rules of Criminal Procedure recommend that 'at a minimum the judge ask questions to elicit the following information:'
"(1) Does the defendant understand the nature of the charges to which he is pleading guilty?
"(2) Is there a factual basis for the plea?
"(3) Does the defendant understand that he has the right to trial by jury?
"(4) Does the defendant understand that he is presumed innocent until he is found guilty?
"(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
"(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?
"We reiterate here what was said in Ingram, [ Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974)] 455 Pa. at 204-205, 316 A.2d at 81: 'Adherence to [the guidelines set out in the Comments to Rule 319(a)] will serve to protect the rights of defendants while simultaneously facilitating appellate review.' Failure to satisfy these minimal requirements will result in reversal. Commonwealth v. Schork, 467 Pa. 248, 356 A.2d 355 (1976); Commonwealth v. Miner, 467 Pa. 230, 356 A.2d 346 (1976)." (Emphasis supplied.)
The above language makes clear that the above six questions are mandatory during a guilty plea colloquy and the failure to "satisfy these minimal requirements will result in reversal."
Commonwealth v. Willis, 471 Pa. 50, 50-52, 369 A.2d 1189, 1189-90 (1977) (emphasis in original).
See also Commonwealth v. Reed, 488 Pa. 221, 412 A.2d 477 (1980); Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978); Commonwealth v. Tabb, 477 Pa. 115, 383 A.2d 849 (1978); Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978); Commonwealth v. Edwards, 269 Pa. ...