No. 80-3-425, Appeal from the Order of the Superior Court at No. 2435 October Term, 1977, dated November 9, 1979, reversing the order of the Court of Common Pleas of Montgomery County, Criminal Division, at Nos. 4093, 4332, 4335, 4365, 4377, 4497 and 4821 October Term, 1974 and No. 363 January Term, 1975, denying relief under the Post Conviction Hearing Act.
William T. Nicholas, Dist. Atty., Ronald T. Williamson, Chief, Appeals Div., Asst. Dist. Atty., for appellant.
Barry M. Miller, Norristown, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.
The Commonwealth appeals from an order of the Superior Court granting appellee, John Ronald Dello Buono, post-conviction relief from judgments of sentence entered in 1975 after appellee pled guilty to charges arising from a series of robberies. The Superior Court granted appellee a trial on the theory that previous counsel provided ineffective assistance in failing to object to a defective guilty-plea colloquy. Because the record establishes that appellee was informed of those constitutional rights essential to an understanding and voluntary waiver of a trial, we reverse the order of the Superior Court and reinstate the judgments of sentence.
On March 5, 1975, appellee tendered a plea of guilty to the Court of Common Pleas of Montgomery County. In the presence of the court, appellee's counsel conducted an on-the-record colloquy with appellee. At that time, appellee's counsel failed to inform appellee that, if tried by a jury, a jury's verdict of guilty would have to be unanimous and that appellee would be presumed innocent until found guilty beyond a reasonable doubt.*fn* The trial court adjourned the hearing and continued the matter until a pre-sentence report could be prepared.
On May 2, 1975, the hearing resumed and the trial court conducted a second colloquy with appellee. In this colloquy, the court informed appellee of those rights which appellee's counsel had failed to discuss during the March 5th colloquy and then asked appellee whether he adhered to his March 5th decision to enter a plea of guilty. After this second colloquy, the trial court determined, in light of both colloquies, that appellee's plea of guilty to all charges was "knowingly, intelligently and voluntarily" entered. Accordingly, the Court accepted the plea and sentenced appellee to a term of ten to twenty-five years' imprisonment. Appellee did not file a petition to withdraw his guilty plea and did not file a direct appeal.
In PCHA proceedings, appellee contended that counsel had been ineffective for failing to object to an allegedly inadequate guilty-plea colloquy. After an evidentiary hearing, the PCHA court denied relief and an appeal was taken to the Superior Court.
In granting appellee a new trial, the Superior Court proceeded on the premise that appellee's plea had been accepted on March 5th. Thus the Superior Court concluded that only the March 5th colloquy, and not the subsequent colloquy of May 2nd, could be considered in determining whether appellee had voluntarily and understandingly ...