No. 398 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Montgomery County, Criminal Division, No. 2278-74.
Barry M. Miller, Norristown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cavanaugh, DiSalle and Montemuro, JJ.
[ 292 Pa. Super. Page 72]
This is an appeal from an order denying relief to appellant, Frank Edward Wyatt, under the Post Conviction Hearing Act. Pursuant to a plea bargain, appellant was sentenced to a term of seven and one half (7 1/2) to fifteen (15) years imprisonment for Kidnapping*fn1 on December 5, 1974.
Appellant contends that trial counsel was ineffective for failing to object to an improper guilty plea colloquy.*fn2 He argues that his guilty plea was not knowing and intelligent because he was not informed of his "presumption of innocence" during the colloquy. Appellant was not, in fact, informed of his presumption of innocence. He was, however, informed that the Commonwealth had to prove every element of the crime beyond a reasonable doubt.
The duty to make an inquiry into the areas listed in the comments of Pa.R.Crim.P. 319(a)*fn3 was not made mandatory until March 17, 1976, a date subsequent to appellant's guilty plea. See Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976). In Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), the court acknowledged that a guilty plea had never been vacated simply because the defendant's "presumption of innocence" had not been mentioned, as long
[ 292 Pa. Super. Page 73]
as a factual basis for the plea was demonstrated and the defendant understood the nature of the charge lodged against him. See also Commonwealth of Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979). From a reading of the colloquy, it is clear that these requisites were established and that therefore the appellant's guilty plea was knowing and intelligent. Despite our finding that the colloquy was proper, and despite the absence of contemporary cases which would have alerted trial counsel to the necessity of advising appellant on the record of his "presumption of innocence," we are constrained to reverse.
In Commonwealth v. Dello Buono, 271 Pa. Super. 572, 414 A.2d 631 (1979), our court voided a 1975 guilty plea because of the same defect without discussing the retroactive impact of such a decision. However, our failure to understand the reasoning of the Dello Buono decision does not affect our obligation to follow it. ...