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COMMONWEALTH PENNSYLVANIA v. MICHAEL E. FULTZ (03/08/83)

submitted: March 8, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL E. FULTZ, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. MICHAEL E. FULTZ, APPELLANT



No. 94 Harrisburg, 1981, Appeal from the Judgment of Sentence of March 11, 1981 In the Court of Common Pleas of Mifflin County, Criminal Division, No. 144 of 1980, No. 161 Harrisburg, 1981, Appeal from the Order of April 27, 1981 In the Court of Common Pleas of Mifflin County, Criminal Division, No. 144 of 1980.

COUNSEL

Alan Ellis, State College, for appellant.

William A. Helm, District Attorney, Lewistown, for Commonwealth, appellee.

Cercone, President Judge, and Wickersham and Montemuro, JJ.

Author: Cercone

[ 316 Pa. Super. Page 262]

Appellant Michael Fultz here appeals from the judgment of sentence imposed by the Court of Common Pleas of Mifflin County on March 11, 1981 following his entry of a guilty plea to the charge of Corruption of a Minor, and from the order entered by that court on April 27, 1981 denying his motion to withdraw his guilty plea. For the reasons advanced infra, we reverse the order of the lower court, vacate the judgment of sentence, and remand the case for a new trial.

On November 20, 1980, pursuant to a plea bargain, appellant pled guilty to Count II (corruption of a minor) of a three count information charging him with attempted involuntary deviate sexual intercourse,*fn1 corruption of a minor,*fn2

[ 316 Pa. Super. Page 263]

    and indecent exposure.*fn3 These charges stemmed from an incident which occurred allegedly on August 23, 1980 in a wooded area of Derry Township wherein appellant exposed his genitals to a six (6) year old boy and attempted to have the child perform fellatio upon him. Following appellant's entry of the plea, the lower court sentenced him to a term of incarceration of not less than ten (10) months nor more than twenty-three (23) months in the Mifflin County Jail, and ordered him to pay a fine of three hundred dollars ($300.00) as well as the costs of his prosecution.

Appellant, previously represented by the Office of the Public Defender, then retained private counsel who, pursuant to Pa.R.Crim.Pro. 321 and 1410, filed timely motions challenging the validity of the guilty plea and requesting a modification of the sentence. The lower court, by order dated April 17, 1981, denied those motions.

Instantly, appellant argues, inter alia,*fn4 that his plea of guilty to the charge of corruption of a minor was unknowing, involuntary, and hence invalid in that it was entered on the advice of counsel who himself was ineffective as a result of his failure to challenge the competency of the complainant, a six year old child. We agree.

[ 316 Pa. Super. Page 264]

The entry of a plea of guilty invariably results in the waiver of all grounds of appeal, with the exceptions of challenges to the voluntariness of the plea and the jurisdiction of the sentencing court. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Commonwealth v. Greer, 475 Pa. 646, 326 A.2d 338 (1974). Consequently, an assertion of ineffective assistance of counsel following upon the entry of a guilty plea will afford a basis for relief only if there can be demonstrated some causal nexus between the alleged ineffectiveness and appellant's entry of what amounts to an unknowing or involuntary plea. Commonwealth v. Chumley, supra; Commonwealth v. Albertson, 269 Pa. Superior 505, 410 A.2d 815 (1980); Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978). In measuring the adequacy of counsel's representation of his client, we are guided by the test employed by our Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), wherein it ruled:

[C]counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis. (emphasis in original).

Id., 427 Pa. at 604-605, 235 A.2d at 352-353.

Upon a thorough review of the record, we conclude that the decision of appellant's plea counsel to forego an investigation into the competency of the Commonwealth's sole witness to the alleged crime, a boy six years of age, enjoyed no reasonable basis.

At the hearing ordered by the lower court on appellant's motion to withdraw his guilty plea, appellant's plea and sentence counsel, Public Defender John B. Schaner, testified ...


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