No. 01699 PHILADELPHIA, 1983, Appeal from an Order of November 12, 1982 in the Court of Common Pleas, Criminal Division, of Chester County, Nos. 1583, 1585 of 1979.
Samuel C. Stretton, West Chester, for appellant.
Stuart B. Suss, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Tamilia, Johnson and Hester, JJ.
[ 335 Pa. Super. Page 133]
On May 5, 1980, appellant, Gene Leroy Rogers, entered a plea of guilty to murder in the second degree, robbery and conspiracy in the Court of Common Pleas of Chester County.
Appellant had been charged with murder, kidnapping, robbery, theft by unlawful taking (automobile), receiving stolen property, unauthorized use of a motor vehicle, aggravated assault, simple assault and criminal conspiracy. At trial, the Commonwealth was seeking the death penalty. Trial started April 28, 1980. Upon listening to the Commonwealth's witnesses during the first week of trial, appellant became concerned, along with members of his family, with the possibility of being convicted of First Degree Murder and receiving the death penalty. His counsel's concern was the potential for consecutive sentences on the kidnapping, robbery and related offenses in the event appellant was convicted of all the charges. Trial counsel was of the opinion that a single life sentence without sentences on the related offenses, offered appellant the most advantageous opportunity of eventual release from prison. At this point in the trial, counsel for appellant advised the court that appellant would enter guilty pleas to second degree murder, robbery and conspiracy. Pursuant to an agreement with the Commonwealth, the remaining charges were to be nol prossed and it was further agreed that a consecutive sentence would not be imposed on the criminal conspiracy charge. The colloquy conducted by the trial court, the learned President Judge E.T. Marrone, in accepting the plea, lasted one hour and ten minutes and covered 43 pages of transcribed testimony. It was complete in every detail.
A motion to withdraw the plea or to challenge its validity was not filed. Appellant was sentenced on May 19, 1980 to
[ 335 Pa. Super. Page 134]
mandatory life imprisonment on the murder conviction. No sentence was imposed on the robbery and conspiracy convictions.
Appellant did not challenge the propriety of sentence nor did he appeal from the judgment of sentence. Instead, on September 17, 1980, he filed a petition for post conviction relief alleging ineffectiveness of counsel and an unlawfully-induced guilty plea. This appeal was taken from the order dated November 12, 1982 denying post conviction relief.
The facts in this case are as follows: on October 16, 1979, between 9:00 and 10:00 p.m., appellant and Donald Middleton left the Central Tavern in Coatesville, Pennsylvania and joined several friends who were loitering across the street. Shortly thereafter, sixteen-year-old Tommy Flood left the tavern in an obviously intoxicated condition, entered his vehicle and fell asleep at the steering wheel without attempting to drive. Flood's actions were apparent to appellant, Middleton and the others. Appellant announced that he was going to "roll" the victim and borrowed a knife for that purpose.
Without provocation, appellant and Middleton approached the automobile, opened the driver's door and commenced striking Flood's face and torso and kicking his ribs. Then, with Flood inside, the assailants drove off.
Although there were no eyewitnesses to most of the assailants' subsequent actions, there was circumstantial evidence that appellant and Middleton continued to assault Flood both inside and outside the vehicle, drove the vehicle over him and left him lie on Rock Run Road in Chester County. Flood's body was discovered at 12:20 a.m. on October 17, 1979. An autopsy determined multiple head injuries as the cause of death.
At approximately 11:30 p.m. on October 16, 1979, appellant and Middleton drove to the apartment of Middleton's sister. They were driving Flood's automobile without the victim, apparently having disposed of the body. Thereafter, they drove to Downington, Pennsylvania, to visit appellant's
[ 335 Pa. Super. Page 135]
girlfriend, Peggy Hunter. Ms. Hunter joined the two assailants in the victim's automobile. When the vehicle stalled due to mechanical problems in Downington, all three were apprehended. At that time Ms. Hunter was wearing a jacket given to her by appellant a short while before. It was identified as the victim's. When Flood's automobile was recovered following arrest, an indentation was discovered on the hood. It was apparently caused by the victim's head being pushed violently onto the hood. Also, hair samples, identified as the victim's were removed from the windshield wipers.
First, appellant argues that his guilty plea was improperly induced by counsel's alleged misrepresentations concerning length and conditions of sentence. Particularly, appellant complains that counsel assured him that actual imprisonment would not exceed ten to twelve years. Therefore, appellant alleges that he interpreted the mandatory life sentence as ten to twelve years of imprisonment. Appellant further alleges that counsel did not inform him that commutation of a life sentence by the governor was required for release and that the victim's family had the right to oppose commutation. For these reasons, appellant maintains that his guilty plea was involuntary and his failure to file a petition to withdraw was not a waiver of his right to challenge the plea.
Where ineffectiveness of counsel causes the entry of an involuntary and unknowing plea, the defendant is entitled to post conviction relief. Commonwealth v. Whittaker, 292 Pa. Super. 172, 436 A.2d 1207 (1981). That appellant pled guilty due to counsel's assurance that he would actually serve ten to twelve years of the life sentence is belied by the record. During the guilty plea colloquy, appellant acknowledged his understanding of counsel's advisory position and his right as defendant to choose ultimate defense strategy. Furthermore, he answered affirmatively to whether he ...