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filed: November 18, 1983.


No. 1591 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1080, 1084, 1091, 1092 November Term, 1979


Warren R. Hamilton, Philadelphia, for appellant.

Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Spaeth, Cavanaugh, Wickersham, Brosky, Beck and Johnson, JJ. Cavanaugh, J., concurs in the result. Spaeth, J., files a dissenting opinion. Johnson, J., files a dissenting statement.

Author: Brosky

[ 322 Pa. Super. Page 75]

This appeal is from judgment of sentence for robbery. Appellant argues that he should be allowed to withdraw his guilty plea for three reasons: First, because his counsel informed him that he would receive a lesser sentence than the one he ultimately received. Second, because he was in a "poor mental condition" at the time the plea was made. Third, because he was coerced into making his guilty plea through the court's refusal to grant a continuance to allow him to obtain new counsel. We find none of these arguments convincing and, accordingly, affirm.


Appellant stated in his pro se petition, and argues on appeal, that he should be permitted to withdraw his guilty plea because his counsel (Mr. Rubin) informed him that he would receive a two to ten year sentence, but in fact he received two consecutive three to ten year sentences. Mr. Rubin refuted this allegation in his sworn testimony at the March 13, 1980 hearing.

At that point I approached you and I questioned you concerning the instruction given to me by Mr. Egan. You at that point refused to make such a recommendation. I advised Mr. Egan of your refusal.

However, even if appellant's allegation was credited, it would avail him nothing. The statements of a defense counsel, without more, regarding the sentence that will be received establish no firm right. Nonconformity with such a statement could certainly result in the defendant's chagrin; but it does not create grounds for the withdrawal of a guilty plea.

The fact that in the finding of the Court as to the degree of defendant's guilt and the sentence imposed, the expectations or hopes of appellant and her counsel were not

[ 322 Pa. Super. Page 76]

    realized is not the kind of "mistake of misapprehension" which in the interest of justice, justifies the withdrawal of a plea of guilty.

Commonwealth v. Kirkland, 413 Pa. 48 at 56, 195 A.2d 338 at 341-2 (1963). See also Commonwealth v. Brown, 242 Pa. Super. 240, 363 A.2d 1249 (1976); Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973).


Appellant also argues that he was in "poor mental health" at the time he entered his guilty pleas and that this justifies the withdrawal of those pleas. It is true that appellant was found to be incompetent at the time of his arrest and that this resulted in an 11-month delay in his being brought to trial. Also, there was testimony that he was incompetent at the second hearing on his petition to withdraw his plea on July 3, 1980. However, the psychologist limited his testimony to appellant's condition when examined several months after the entry of the plea. He specifically declined to venture any opinion on appellant's mental condition at the time of the entry of the guilty pleas. It is also the case that appellant's sentence included his initial placement at Philadelphia State Hospital.

None of this relates to appellant's mental condition at the pertinent time -- when he entered his guilty pleas. Prior to that time, he was adjudicated competent. There are no other facts of record regarding appellant's mental condition at the relevant instant other than his statement that he was "under pressure."

Being "under pressure" at the time one enters a guilty plea cannot in and of itself establish the mental state of incompetency.*fn1 If this were the case, it would be impossible to ever have a valid guilty plea.

Our treatment of appellant's "poor mental condition" has been in terms of incompetency, even though it was

[ 322 Pa. Super. Page 77]

    presented by appellant in terms of his "poor mental condition" and not in terms of incompetency. This is because such incompetency is the only basis for invalidating the guilty plea on his mental state. Considering the requisite mental condition to support a finding of incompetency, this is eminently reasonable.

Definition of Incompetency. -- Whenever a person who has been charged with a crime is found to be substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense, he shall be deemed incompetent to be tried, convicted or sentenced so long as such incapacity continues.

50 P.S. § 7402(a). See also Commonwealth v. Harper, 479 Pa. 42 at 45-6, 387 A.2d 824 at 826-7 (1978).

These are precisely the factors which would prohibit appellant from entering a valid guilty plea vis-a-vis his mental state. Thus, our focus must be on appellant's competency or incompetency.

One of the requirements for a finding of incompetency is the placement of the burden of proof. "The moving party shall have the burden of establishing incompetency to proceed by clear and convincing evidence." 50 P.S. § 7403(a). See also Commonwealth v. Knight, 276 Pa. Super. 348 at 354, 419 A.2d 492 at 495 (1980) (Spaeth, J.). "The decision as to a defendant's competency to stand trial rests within the discretion of the trial judge." Id., 276 Pa. Superior Ct. at 359, 419 A.2d at 497. Since it is appellant who is arguing, in effect, his incompetency, it is he who has the burden of proof on this issue. Appellant has not met this burden of proof.

Absent any proof of his incompetency -- much less a satisfaction of his burden of proof in this regard -- we cannot invalidate appellant's guilty plea on the grounds of his incompetency.

[ 322 Pa. Super. Page 78]


Appellant's last argument is that he should have been allowed to withdraw his guilty plea because his request for a continuance to obtain new counsel was denied. He contends that this put him in the position of either proceeding to trial with counsel in which he did not have confidence or pleading guilty. This created, he says, a form of coercion which rendered his guilty plea involuntary.

As presented in the abstract, this argument is a convincing one. As applied to the facts of this case, it is unconvincing.

Notwithstanding the fact that an indigent defendant does not have a right to counsel of his choice, Commonwealth v. Simpson, 222 Pa. Super. 296, 294 A.2d 805 (1972), it is certainly conceivable that a defendant could be placed in a situation in which a lack of confidence in his court-appointed counsel could result in an unwillingness to go to trial. This could, in turn, result in the entry of an involuntary guilty plea. The questions before us are what the parameters are in which we will recognize that this has occurred and whether they are present here.

A recent United States Supreme Court decision, Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), is most helpful in setting these boundaries. In the opinion of the Court, the Chief Justice wrote:

The Court of Appeals' conclusion that the Sixth Amendment right to counsel "would be without substance if it did not include the right to a meaningful attorney-client relationship," [Slappy v. Morris ] 649 F.2d [718] at 720 [(9th Cir. 1981)] (emphasis added), is without basis in the law. No authority was cited for this novel ingredient of the Sixth Amendment guarantee of counsel, and of course none could be. No court could possibly guarantee that a defendant will develop the kind of rapport with his attorney -- privately retained or provided by the public -- that the Court of Appeals thought part of the Sixth Amendment guarantee of counsel. Accordingly, we reject the

[ 322 Pa. Super. Page 79]

    claim that the Sixth Amendment guarantees a "meaningful relationship" between an accused and his counsel.

Morris v. Slappy, supra, 461 U.S. at , 103 S.Ct. at 1617.

The lesson to be gained from this holding is simple. Appellant's mere dissatisfaction with counsel does not work a violation of his Sixth Amendment right to counsel. Without more, such dissatisfaction could not create a situation which we would recognize as coercing a guilty plea.

This is in accord with the law regarding continuances. The decision whether to grant a continuance is within the discretion of the court below. Commonwealth v. Kittrell, 285 Pa. Super. 464, 427 A.2d 1380 (1981). An appellate court cannot disturb a continuance decision absent an abuse of that discretion. The United States Supreme Court also addressed this area in Morris.

Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable request for delay" violates the right to the assistance of counsel. Ungar v. Sarafite, 376 U.S. 575, 589 [84 S.Ct. 841, 849, 11 L.Ed.2d 921] (1964).

Morris, supra, 461 U.S. at , 103 S.Ct. at 1616.

Only if there was a "justifiable request for delay," which was not granted, could appellant's right to counsel have been violated and the guilty plea have been coerced.

What would make such a request justifiable? All such requests cannot be per se justifiable. That would enable a criminal defendant to indefinitely delay his going to trial. He would simply have to announce to the court at every trial date that he was dissatisfied with his counsel and wanted a continuance to obtain new counsel. Nor, as noted above, can all such requests be considered per se unjustifiable.

[ 322 Pa. Super. Page 80]

A standard is necessary to separate the justifiable from the unjustifiable request for a continuance due to dissatisfaction with counsel.

In determining the applicable standard, we have looked to the test applied in a similar context: whether a confession can be suppressed because it was given in a custodial interrogation setting without constitutional safeguards, rooted in voluntariness, having been met. The situation before us has many parallel features: whether a guilty plea can be withdrawn because it was given in a situation without constitutional safeguards, rooted in voluntariness, having been met.

The standard to be applied to the former situation in this Commonwealth was announced in Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1971) (Eagen, J.).

It is our view that the proper test was applied in Myers v. State, 3 Md.App. 534, 240 A.2d 288 (1968), wherein the court stated:

The above test has the element of objectiveness since we look at what the suspect could believe as a reasonable man, and by focusing on the suspect, compliance with the thrust of the Miranda decision is achieved.

Commonwealth v. Marabel, supra, 445 Pa. at 441-42, 283 A.2d at 288.

The rationale supporting this standard applies to the legal issue before us.

11. Professor Kamisar has recently characterized the "reasonable belief" standard as the "best approach." See Remarks of Professor Kamisar at the First Annual Supreme

[ 322 Pa. Super. Page 81]

Court Review and Constitutional Law Symposium reprinted in The Supreme Court 1978-79 Ch. 12 p. 184 (1979).

"This approach seems most consistent with Miranda and it avoids reliance on self-serving statements either by the police or by the suspect himself. This approach also avoids the need to determine the police interrogator's state of mind and frees the police officers from the responsibility for the idiosyncrasies of various suspects."

Commonwealth v. Meyer, 488 Pa. 297 at 307 n. 11, 412 A.2d 517 at 522 n. 11 (1980).

The standard announced in Marabel is transferable to the situation before us: whether a guilty plea can be withdrawn on the grounds that the guilty plea was coerced through the denial of a continuance, forcing appellant to plead guilty rather than go to trial with counsel in whom he had no confidence.

We hold that this standard is that the criminal defendant must have a reasonable belief that his counsel will not adequately represent him. At the risk of explaining the obvious, we note that this requirement consists of two parts. First, that the criminal defendant must actually have such a belief. Second, ...

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