decided: December 17, 1981.
COMMONWEALTH OF PENNSYLVANIA,
WILLIAM HINES, APPELLANT
No. 80-1-78, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, dated March 5, 1980, at 3686 May Term, 1970
Paul Bogdon, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kathryn L. Simpson, Asst. Dist. Atty., Pittsburgh, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman and Wilkinson, JJ. Larsen, J., files a concurring opinion in which Flaherty and Kauffman, JJ., join. Nix, J., concurs in the result.
[ 496 Pa. Page 557]
This is an appeal from an order of the Court of Common Pleas of Allegheny County denying appellant's petition for post-conviction relief. In the petition, appellant sought to
[ 496 Pa. Page 558]
withdraw his guilty plea, as he had in the trial court both before and after sentencing, on the ground that it was involuntarily entered. We conclude that the trial court improperly accepted appellant's plea of guilty since the guilty plea colloquy demonstrated no factual basis for appellant's guilty plea and no basis to conclude that appellant understood the nature and elements of the charges against him and the consequences of his plea. Hence, we reverse the order of the PCHA court, vacate appellant's plea of guilty, and remand for trial.*fn1
Appellant was indicted in 1970 on charges of murder and voluntary manslaughter for the killing of a seventeen-year-old
[ 496 Pa. Page 559]
girl who had been raped and stabbed to death. Appellant was fifteen years old and had completed second grade. Pursuant to a court-directed examination, a doctor concluded that appellant was "not psychotic, and although of low intelligence, . . . [was] competent to defend himself." The evidence connecting appellant to the scene of the crime consisted of circumstantial evidence, primarily a pair of pink trousers, and a confession by appellant to police on the night of his arrest. In the confession, appellant admitted the rape, but denied having killed the victim. He attributed the killing to an alleged accomplice.
Appellant pleaded guilty to murder generally on September 29, 1970. After a degree-of-guilt hearing, he was found guilty of murder of the first degree and sentenced to life imprisonment.
It is a long established principle of constitutional due process that the decision to plead guilty must be personally and voluntarily made by the accused. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to the Prosecution and Defense Function, The Defense Function § 5.2 (Approved Draft, 1971); Comment, Criminal Waiver: The Requirement of Personal Participation, Competence and Legitimate State Interest, 54 Calif.L.Rev. 1262 (1966). Because a guilty plea is not only an admission of conduct but also is an admission of all the elements of a formal criminal charge, and constitutes the waiver of constitutionally-guaranteed rights, the voluntariness of a guilty plea must be affirmatively established. "Presuming waiver from a silent record is impermissible." Boykin v. Alabama, supra, 395 U.S. at 242, 89 S.Ct. at 1712.
The constitutional standard for determining whether a guilty plea is voluntarily made is the same as that which generally governs the waiver of constitutional rights. The
[ 496 Pa. Page 560]
guilty plea must constitute "an intentional relinquishment or abandonment of a known right or privilege." Boykin, supra, 395 U.S. at 243 & 243 n.5, 89 S.Ct. at 1712 & 1712 n.5, quoting and applying Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Thus,
"[a] plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving, see, e.g., Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary in this latter sense. Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859."
Henderson v. Morgan, supra, 426 U.S. at 645 n.13, 96 S.Ct. at 2257 n.13.
In order to satisfy the constitutional requirement that a valid guilty plea must stand as an "intelligent admission of guilt," the law of this Commonwealth has long required that before a judge may properly accept a plea of guilty, a colloquy with the defendant must demonstrate that there is a factual basis for the plea and that the defendant understands the nature and elements of the offense charged. See, e.g., Commonwealth v. Tabb, 477 Pa. 115, 383 A.2d 849 (1978); Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976); Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974); Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968). Accord, ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty §§ 1.4-1.6 (Approved Draft, 1968); Standards Relating to the Function of the Trial Judge § 4.2 (Approved Draft, 1972).
The only portion of the guilty plea colloquy which bears on these requirements is the following:
"THE CLERK: How do you plead?
THE DEFENDANT: Guilty.
[ 496 Pa. Page 561]
THE CLERK: Are you guilty or not guilty of the felonies wherewith you stand charged?
THE DEFENDANT: I am guilty.
THE CLERK: Your Honor, the defendant being duly arraigned pleads guilty generally.
THE COURT: You must understand that by this plea, the plea, of course, is a plea to second degree murder, and it becomes the duty of the Commonwealth to raise this degree of the crime, if such there be, from second to first. Before we proceed with this case, I want to be absolutely certain that you understand the nature of the plea, and I would like to have the accused interrogated at this point.
BY MR. BAXTER [defense counsel] OF THE DEFENDANT:
Q. William, do your understand what you are charged with here today?
A. Yes, sir.
Q. You do?
Q. And do you understand what they are saying you did?
A. Yes, sir.
Q. Now, you are pleading guilty to this charge. Is that right?
A. Yes, sir."*fn2
[ 496 Pa. Page 562]
This colloquy, which did no more than inform appellant of the name of the crime after he had pled guilty, is grossly inadequate.
Where, as here, no facts underlying the alleged offense are adduced at the time the guilty plea is entered, there is no factual basis for the trial judge to accept the plea. Although charged with murder, appellant was not even asked the threshold question of whether he had killed the
[ 496 Pa. Page 563]
victim. In fact, on this record, although appellant has admitted the rape of the victim, he has denied the killing. Compare Commonwealth v. Ingram, supra (admission at guilty plea colloquy that appellant "shot and killed" victim sufficient factual basis for murder plea).
The guilty plea colloquy equally fails to establish that appellant understood the nature and elements of the offenses with which he was charged.
"In order to demonstrate that a defendant possesses such understanding, he certainly must be told more than just that he has been charged with murder or robbery, for example. While such terms clearly connote some meaning to the layman, this meaning does not always embrace the basic legal elements of the crime. If this were not the case, there would be no need for instructions to a jury on such points, for certainly, an average defendant cannot be presumed to understand more than an average juror. Thus, for an examination to demonstrate a defendant's understanding of the charge, the record must disclose that the elements of the crime or crimes charged were outlined in understanding terms."
Commonwealth v. Ingram, supra, 455 Pa. at 203-04, 316 A.2d at 80. Prior to pleading guilty, appellant was not even informed of the charges against him. He was asked only whether he was pleading guilty or not guilty to the "felonies" with which he was charged. After pleading guilty, appellant was informed that his plea was to second-degree murder. However, he was never informed of the elements of second-degree murder. Nor was appellant informed of the elements, including the principles of felony-murder, which, if proven at the degree of guilt hearing, would permit the degree of murder to be raised from second to first degree. See, e.g., Commonwealth v. Tabb, 477 Pa. 115, 383 A.2d 849 (1978).*fn3
[ 496 Pa. Page 564]
Not only was there no factual basis upon which to accept appellant's guilty plea, and no demonstration that appellant understood the nature and elements of the offense to which he pled guilty, but also there was no basis upon which the trial court could conclude that appellant understood the consequences of his plea. The guilty plea colloquy did not satisfy even one of the areas of questioning mandated by Pa.R.Crim.P. 319. Rule 319 requires that "at a minimum," the court must elicit the following information from the defendant:
"(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?"
Accord, Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976). See also ABA Project on Minimum Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 4.3 (Approved Draft, 1972) (court should advise defendant of right to trial by jury before accepting waiver). Only the first area of questioning, concerning the defendant's understanding of the nature of the charges to which he was pleading guilty, was explored at all. And, as previously demonstrated, that inquiry was wholly deficient.
[ 496 Pa. Page 565]
That appellant's guilty plea was not validly accepted is substantiated by appellant's effort to withdraw the plea shortly after it had been entered. Surely, at the time appellant sought to withdraw the plea, there was no basis for the court's denial of his request.
The court was aware at the time it accepted appellant's plea that, the day before, appellant had informed the court of his desire to change the plea which he would enter from guilty to not guilty. Moreover, it was undisputed at the post-conviction hearing that appellant had "held out for days" refusing to accept the advice of counsel and his mother to plead guilty. The court was also aware that appellant was fifteen years old, had completed second grade, and was of low intelligence. Nonetheless, at the guilty plea colloquy, appellant was not questioned about his previously expressed desire to plead not guilty. Compare Commonwealth v. Hollenbaugh, 449 Pa. 6, 295 A.2d 78 (1972) (1968 colloquy which questioned defendant regarding change of plea cited with approval).
Instead of satisfactorily questioning appellant, the trial court relied upon the representation of appellant's counsel, including the following:
"MR. BAXTER: I had full and absolute disclosure from the Commonwealth as to every item of evidence they intended to produce in the case, and that they would produce in the case. I don't think that they will call a witness or present an item of physical evidence that I am not familiar with.
THE COURT: Well, then, the question is then did you make these discussions with the accused in this case in light of the knowledge that you have had?
MR. BAXTER: That's correct.
THE COURT: And you have made reference to the items of evidence that the Commonwealth intends to utilize in this case?
MR. BAXTER: That's correct.
[ 496 Pa. Page 566]
THE COURT: Very well. Under these circumstances I think that the plea as entered by William Hines is knowingly and understandingly made, and therefore the Court will accept the plea as entered."
Notwithstanding defense counsel's representation to the court that he had discussed the Commonwealth's evidence with appellant, defense counsel subsequently made known to the court that he had not even mentioned, much less discussed the potential consequences of, the Commonwealth's possession of the confession in which appellant had admitted raping the victim. This confession was the only direct evidence of appellant's participation in the crime and thus was critical to the prosecution's proof of appellant's responsibility for murder.*fn4
The defense attorney then challenged the admissibility of the confession on the ground that the confession was involuntarily given and had been made without having had the advice of counsel or an interested adult. After an immediate hearing on the admissibility of the confession, the court recessed for lunch. When the court reconvened, and before the court announced its ruling that the confession was admissible, defense counsel informed the court that appellant "advised me that he wishes to withdraw his plea, that he no longer desires my representation in this case and that
[ 496 Pa. Page 567]
his mother intends to retain Thomas Harper to represent him in this matter." Despite this development, the court denied the request without directing any questions to appellant to confirm appellant's understanding of his plea, his desire to withdraw the plea, and his desire regarding representation.*fn5 It was clear error for the trial court to deny
[ 496 Pa. Page 568]
appellant's request to withdraw his guilty plea simply because appellant made a simultaneous request for new counsel, and without questioning appellant concerning the reasons for withdrawal. See Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973).
The Commonwealth attempts to circumvent the requirement of a proper on-the-record colloquy by arguing that testimony of appellant's trial counsel at the post-conviction hearing on appellant's previous PCHA petition establishes that appellant's plea was in fact voluntary. The Commonwealth's argument fails both on its premise and on its facts.
The requirement that a guilty plea colloquy must reflect the voluntariness of the plea is based on the fact
[ 496 Pa. Page 569]
that, without such a showing, there is no legitimate basis upon which the trial court may accept the plea as voluntarily entered. See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty §§ 1.4-1.7 (Approved Draft, 1968); Standards Relating to the Function of the Trial Judge § 4.2 (Approved Draft, 1972). As this Court has stated, "an attorney's discussion with his client, outside the court's presence, was never intended to provide the basis for an independent, judicial conclusion that the accused understands and admits the specific acts constituting the crime(s) charged." Commonwealth v. Belgrave, 445 Pa. 311, 317-18, 285 A.2d 448, 451 (1971) (emphasis in original).
Moreover, without an on-the-record guilty plea colloquy, there can be no proper appellate review. A guilty plea serves as a waiver of all issues on appeal other than the legality of the sentence and the voluntariness of the plea. See Commonwealth v. Martin, 445 Pa. 49, 282 A.2d 241 (1971). Thus, without an adequate record, the defendant's right to appeal on the issue of voluntariness is eviscerated, and a defendant who has entered an involuntary plea may nevertheless remain unjustly convicted. In addressing the requirement that a waiver of constitutional rights must be intelligent and knowing, and hence affirmatively made, the Supreme Court of the United States has aptly stated: "no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens' abdication through unawareness of their constitutional rights." Escobedo v. Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977 (1964). This Court, like the Supreme Court of the United States, has recognized that
"the best and surest way to assure both that the defendant's rights are protected and that the plea is validly taken is to make an adequate record at the plea hearing:
'What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the
[ 496 Pa. Page 570]
plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought . . . and forestalls the spin-off of collateral proceedings that seek to probe murky memories.'"
Commonwealth v. Minor, 467 Pa. 230, 237-38, 356 A.2d 346, 349-50 (1976), quoting Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712-13, 23 L.Ed.2d 274 (1969).
The Commonwealth's effort to present testimony at the post-conviction hearing establishing the voluntariness of the plea in no respect satisfactorily probed "murky memories." The defense counsel no longer had any notes concerning his representation of appellant and he could recall few specifics. His only testimony regarding discussions with appellant was:
"So I would say I went into great depth into that evidence; and, then, I discussed the various theories of murder; and it was my opinion, based on the evidence that I saw, that the degree of murder was sustainable regardless of the felony aspect just by the nature of the crime."
The testimony presented at the post-conviction hearing completely fails to establish that there was a factual basis for the guilty plea or that appellant understood either the charges to which he pled guilty or the consequences of his plea.
The manifest injustice on this record of a conviction based on a guilty plea entered in violation of constitutional requirements that the plea be voluntarily made mandates reversal.
Order reversed and case remanded for trial.
[ 496 Pa. Page 571]
LARSEN, Justice, concurring.
Although I agree with the majority's disposition of this case, I must voice my objection to the majority's reliance upon Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) and subsequent cases for the purpose of invalidating a guilty plea entered years before any of those cases were decided. Those cases and the new rules of criminal procedure which they announced are based upon procedural, rather than constitutional, principles, and should have only prospective effect. Therefore, for the reasons enumerated in the opinion by this writer in Commonwealth v. Minarik, 493 Pa. 573, 427 A.2d 623 (1981), I do not concur in the premise underlying the majority opinion, namely, that a guilty plea colloquy which occurred in 1970 must comply with procedures mandated by this Court's cases after 1970.
Nevertheless, I agree with the majority's conclusion that appellant's guilty plea was not entered knowingly, intelligently or voluntarily. In 1970, when appellant pled guilty,
[t]o be Constitutionally valid, a plea of guilty must have been voluntarily, knowingly and intelligently made, i.e., with an understanding of the nature of the charges against him, his right to a jury trial and an awareness of the consequences of his plea.
Commonwealth v. Belgrave, 445 Pa. 311, 317, 285 A.2d 448, 450-51 (1971) (citation omitted, emphasis in original). See also Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 106, 237 A.2d 196, 198 (1968) (a trial court's examination of a defendant should include "an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences").
Appellant's guilty plea falls far short of this standard. Although the trial judge in this case conducted an on-the-record colloquy, that colloquy included no explanation of the nature of the charges against appellant, no mention of appellant's right to a jury trial, and no explanation of any of the consequences of a guilty plea.
[ 496 Pa. Page 572]
Since the colloquy in this case was inadequate to show that appellant's guilty plea was voluntary, knowing and intelligent, even under the standards which existed in 1970, I agree with the majority that the order of the PCHA court must be reversed, appellant's guilty plea must be vacated, and the case must be remanded for a new trial.