No. 423 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Lancaster County, 1973, at No. 772, 773 and 777.
Joseph C. Madenspacher, Assistant District Attorney, Lancaster, for Commonwealth, appellant.
Timothy J. Reese, Lancaster, for appellee.
Rowley, Beck and Montemuro, JJ.
[ 330 Pa. Super. Page 238]
This is an appeal by the Commonwealth from the trial court's order granting appellee's claim for relief pursuant to the Post Conviction Hearing Act (hereinafter "PCHA").*fn1 Appellee, Charles Broadwater, filed a PCHA petition claiming that ineffective assistance of trial counsel resulted in: 1) his entry of a guilty plea that was not knowingly and voluntarily tendered, and 2) impropriety in the sentencing procedure. The PCHA court granted relief in the form of vacating appellee's sentence and granting him a new trial. The Commonwealth has appealed. We reverse.
On March 5, 1972, several hours after killing a man in Schuylkill County, appellee was stopped by police officers in Lancaster County because of his erratic driving. He was given a citation for "underage drinking". During the course of the officers' investigation, appellee managed to disarm the police officers and confiscate their weapons. He then forced the two officers to drive him around Lancaster County while he sat in the back seat of their vehicle pointing one of the loaded revolvers at the backs of their heads. Later that morning, however, the officers subdued appellee and placed him under arrest. Subsequently, appellee was charged in Lancaster County with kidnapping, pointing a deadly weapon, violation of the Uniform Firearms Act and two counts of robbery.
Appellee, on September 17, 1973, immediately prior to the commencement of trial, entered a counseled guilty plea in Lancaster County to the charges of (1) pointing a deadly weapon, (2) one count of armed robbery, and (3) kidnapping. The plea was entered as part of a plea bargain whereby the
[ 330 Pa. Super. Page 239]
Commonwealth agreed to nol prosse the additional charges of robbery and violation of the Uniform Firearms Act. Immediately after entry of the plea, appellee was sentenced. He was sentenced to five to ten years imprisonment for robbery; one to two years imprisonment for kidnapping (consecutive); and one year for pointing a deadly weapon (concurrent). The Lancaster County sentence for robbery was made consecutive to a ten to twenty year sentence for murder imposed by the Court of Common Pleas of Schuylkill County.
Appellee filed a pro se PCHA Petition on March 25, 1981, claiming that ineffective assistance of counsel resulted in an unlawfully induced guilty plea. On March 26, 1981, new counsel was appointed to represent appellee. A hearing on the petition was held on December 8, 1981. Three months later appellee became eligible for parole from his Schuylkill County sentence. Following the vacation of his sentence in Lancaster County, appellee was released on bail on the Lancaster County charges and was released on parole from the Schuylkill County sentence.
The Commonwealth claims on appeal that the trial court erroneously allowed appellee to withdraw his guilty plea in light of the court's finding that trial counsel was not ineffective. Therefore, the Commonwealth contends, appellee was entitled at most to relief in the form of resentencing, and not to relief in the form of withdrawal of his guilty plea.
It is well settled that where a guilty plea has been entered, all grounds of appeal are waived except challenges to the voluntariness of the plea and the jurisdiction of the court. Charges of ineffectiveness of counsel in connection with a guilty plea serve as a basis of relief only upon a showing of a causal nexus between the alleged ineffectiveness and the entry of an unknowing or involuntary plea. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Commonwealth v. Williams, 496 Pa. 486, 437 A.2d 1144 (1981); Commonwealth v. Fultz, 316 Pa. Super. 260, 462 A.2d 1340 (1983).
[ 330 Pa. Super. Page 240]
The test of trial counsel's ineffectiveness is also well established. The initial inquiry is whether the matter counsel is charged with failing to pursue had arguable merit, and if so, whether counsel's failure to pursue it had some reasonable basis. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Fultz, supra; Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982); Commonwealth v. McFadden, 300 Pa. Super. 299, 446 A.2d 624 (1982).
Instantly, the trial court, while granting appellee the relief of vacating his sentence and a new trial, concluded that the plea colloquy met pre Ingram Standards, and also determined "that counsel's alleged ineffectiveness was not the cause of [appellee's] guilty plea" (Opinion, at 2). The PCHA court granted the relief, however, on the basis of four factors: (1) its opinion that the plea colloquy contained a garbled statement about the maximum possible sentence; (2) a pre-sentence report was never produced, and if it had been produced it might have reduced the sentence; (3) the age of the accused, which was nineteen at the time of the sentencing; and (4) the failure of the record to show a "proper ...