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filed: July 2, 1982.


No. 1890 October Term, 1979, Appeal from Order of the Court in the Court of Common Pleas, Criminal Division, of Montgomery County at No. 2892 July Term, 1974.


Ronald F. O'Driscoll, Assistant Public Defender, Lansdale, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Price, Cavanaugh and Watkins, JJ.

Author: Cavanaugh

[ 301 Pa. Super. Page 273]

This is an appeal from an order of the Court of Common Pleas of Montgomery County denying appellant relief under the Post Conviction Hearing Act (PCHA).*fn1

Appellant pleaded to various counts of robbery,*fn2 theft,*fn3 weapons offenses*fn4 and criminal conspiracy*fn5 before the Honorable Benjamin Scirica on July 16, 1975.*fn6 Under a plea agreement, the Commonwealth nolle prossed charges of prohibited offensive weapons, receiving stolen property and other charges. Appellant was sentenced pursuant to the plea agreement to not less than five (5) nor more than fifteen (15) years imprisonment and ordered to pay the costs of prosecution. No motion to withdraw the guilty plea was filed and no direct appeal was taken.

Appellant filed a pro se PCHA petition claiming the ineffectiveness of counsel for failure to object to the imposition of costs. The lower court appointed counsel but denied the petition the following day. On appeal, this court found that though the petition was patently frivolous, the lower court should have afforded the appellant and his appointed counsel an opportunity to amend his uncounseled petition. Commonwealth v. Williams, 266 Pa. Super. 118, 403 A.2d 122 (1979). Appellant filed an amended petition which the lower court denied and this appeal followed.

Appellant contends that trial counsel was ineffective for failing to object to the defective guilty plea colloquy which failed to adequately inform the appellant of his right to a

[ 301 Pa. Super. Page 274]

    jury trial. Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). The Commonwealth contends that the guilty plea colloquy was adequate under the state of the law at the time of the appellant's guilty plea. Commonwealth v. Brewer, 479 Pa. 558, 388 A.2d 1071 (1978). We agree with the appellant and accordingly, reverse the order of the court below.*fn7

The pertinent portion of the guilty plea colloquy of July 16, 1975 was as follows:

You understand that you have the right to trial by court or trial before a jury, and if you went to trial before a jury, you could assist your attorney in selecting that jury. Do you understand that? (N.T. p. 9).

The question of whether counsel was ineffective for failing to object to the defective guilty plea is controlled by Commonwealth v. Dello Buono, 271 Pa. Super. 572, 414 A.2d 631 (1979). In that case the defendant pled guilty to various charges in May, 1975. During the guilty plea colloquy the defendant was not advised that the verdict of the jury must be unanimous. This Court held that the guilty plea was therefore defective and counsel ineffective since the record established no reasonable basis for failing to challenge the defect.

Moreover, in Commonwealth v. Williams, supra, decided two years prior to appellant's guilty plea, the Supreme Court held that the basic ingredients of a jury trial which are necessary to a knowing and intelligent waiver are the "requirements that the jury be chosen from the community (a jury of one's peers), that the verdict be unanimous, and that the accused be allowed to participate." See Pa.R.Crim.P. 319. Comment.;*fn8 Pa.R.Crim.P. 1101.

[ 301 Pa. Super. Page 275]

In Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978), our Supreme Court stated that an inquiry into these elements of a jury trial was necessary to ensure a valid guilty plea colloquy. This case was decided after appellant's guilty plea in 1977. However, in Commonwealth v. Ward, id., the court cited its decision in Commonwealth v. Williams, (citation omitted) in support of their position, stating:

Williams held that before a purported waiver of the right to trial by jury may be said to be valid, the record must show that the defendant understood that the jurors would be chosen from members of the community, that the accused would be able to participate in their selection, and that any verdict which the jury might render would have to be unanimous. Supra, 483 Pa. at 56, 394 A.2d at 536.

The clear implication of Commonwealth v. Ward, supra, is that the inquiry into these rights was necessary since the decision in Commonwealth v. Williams, supra.

Moreover, in Commonwealth v. Dello Buono, (citation omitted), the court, citing Commonwealth v. Ward, supra, found a 1975 guilty plea colloquy invalid for a similar defect. Commonwealth v. Dello Buono, supra, in effect, construes Commonwealth v. Ward, supra, retroactively.

[ 301 Pa. Super. Page 276]

Commonwealth v. Troop, 295 Pa. Super. 485, 486-87, 441 A.2d 1336, 1337 (1982).

Thus contrary to the Commonwealth's argument, the guilty plea colloquy was inadequate in 1975. "[A] colloquy must indicate, at a minimum, that the defendant knew the essential protections inherent in jury trial . . . ." Commonwealth v. Fortune, 289 Pa. Super. 278, 282-83, 433 A.2d 65, 67 (1981), quoting Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). Since the guilty plea colloquy failed to inform the appellant of his right to a jury trial and the record establishes no reasonable basis for trial counsel's failure to challenge the inadequate colloquy, the order of the lower court is reversed and a new trial is ordered.


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