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.
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
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
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
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 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 ...