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COMMONWEALTH PENNSYLVANIA v. GEORGE W. BROWN (05/10/85)

filed: May 10, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE W. BROWN, APPELLANT



COUNSEL

James L. Goldsmith, Harrisburg, for appellant.

Katherine E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Spaeth, President Judge, and Wickersham, Brosky, Cirillo, Beck, Popovich and Hester, JJ. Spaeth, President Judge, files an opinion in support of remand in which Brosky, J., joins. Popovich, J., files an opinion in support of reversal in which Wickersham, J., joins. Cirillo, J., files an opinion in support of affirmance in which Beck and Hester, JJ., join.

Author: Per Curiam

[ 342 Pa. Super. Page 250]

Order

AND NOW, May 10th, 1985, the order of the trial court is reversed to the extent that the case is remanded to permit appellant to exercise his right to allocution. The order of the trial court is affirmed in all other respects.

[ 342 Pa. Super. Page 265]

[EDIT ] OPINION IN SUPPORT OF AFFIRMANCE BY CIRILLO, Judge:

Early in 1974, appellant George Walter Brown committed three separate armed robberies, each in the company of an armed cohort, in Dauphin County, Pennsylvania. Pursuant to a plea agreement, Brown pled guilty on September 16,

[ 342 Pa. Super. Page 2661974]

, to three charges of robbery arising from the incidents. The court accepted Brown's pleas and sentenced him to three concurrent terms of five to fifteen years in prison. No direct appeal was taken; however, on December 10, 1974, Brown filed a first petition under the Post Conviction Hearing Act*fn1 (PCHA) alleging that he had been denied the right to representation by competent counsel, that his guilty pleas had been unlawfully induced, and that a right guaranteed him by the constitution or laws of this State had been abridged. The Court of Common Pleas of Dauphin County denied the petition without a hearing, and Brown appealed to the Superior Court. On appeal Brown argued that his original counsel had been ineffective for failing to appeal to challenge (1) the validity of Brown's waiver of the right to a jury trial, and (2) the validity of his guilty plea. The Superior Court affirmed the order of the PCHA court. Commonwealth v. Brown, 242 Pa. Super. 240, 363 A.2d 1249 (1976). We held that Brown had effectively waived his right to trial by jury, and that his contentions on this point were frivolous. We also held that Brown's guilty plea colloquy established conclusively that he had pled guilty validly. Based on these holdings, we went on to hold that Brown's original counsel could not be found ineffective for failing to appeal these issues.

On September 22, 1981, Brown filed his second PCHA petition, alleging the ineffectiveness of both his original counsel and his first PCHA counsel for failing to preserve or argue claims that (1) the criminal informations filed against him were rubber-stamped with a facsimile of the district attorney's signature; (2) the sentencing judge did not put reasons for the sentence on the record in compliance

[ 342 Pa. Super. Page 267]

    with Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); (3) the sentencing judge did not invite him to exercise his allocution rights at sentencing; and (4) the colloquy conducted at his guilty plea hearing was defective. Brown's petition also alleged indigency and requested the appointment of counsel. On September 23, 1981, the Honorable William W. Lipsitt denied Brown's petition without a hearing and without appointing counsel.

An appeal from Judge Lipsitt's order ensued, bringing Brown's case before this Court for the second time. On appeal Brown pursues the first three of the four issues raised in his PCHA petition below. He maintains that with regard to these three issues it was error for the judge to summarily dismiss the petition without a hearing and without appointing counsel.

Preliminarily, we turn our attention to the effect of appellant's guilty plea on the status of his current claims.

Upon entry of a plea of guilty all grounds of appeal are waived except challenges to the voluntariness of the plea, the jurisdiction of the sentencing court, and the legality of the sentence. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981); Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. Whittaker, 292 Pa. Super. 172, 436 A.2d 1207 (1981). The voluntariness of appellant's plea has already been litigated and conclusively decided against him on his first PCHA appeal. Commonwealth v. Brown, supra; see generally Commonwealth v. Edrington, 317 Pa. Super. 545, 464 A.2d 456 (1983). Possibly for that reason, appellant does not pursue an attack on his plea. The jurisdiction of the court that sentenced appellant is beyond dispute. Thus, the only remaining issues that survived appellant's plea are challenges to the legality of the sentence. Appellant does raise issues directed against the validity of his sentence, but his claim that the criminal information filed against him was rubber-stamped with a facsimile of the district attorney's signature is not

[ 342 Pa. Super. Page 268]

    such an issue. Consequently, the rubber stamp issue was waived by appellant's entry of a plea of guilty.

The next principle we should recognize is that issues may be waived if they are not preserved at every stage of the criminal proceedings at which orderly state procedures make it appropriate to raise them. Commonwealth v. Harper, 292 Pa. Super. 192, 436 A.2d 1217 (1981). This principle applies independently of the principle governing waivers attendant upon a plea of guilty. It affects not only appellant's rubber stamp issue, but also his sentencing claims -- that the reasons for his sentence were not put on the record and that he was denied his right to allocution at sentencing. The rubber stamp issue was waived absolutely and irrevocably when the issue was not raised in a pretrial motion. Commonwealth v. Veneri, 306 Pa. Super. 396, 452 A.2d 784 (1982) (en banc); Commonwealth v. Spiegel, 311 Pa. Super. 135, 457 A.2d 531 (1983). Procedural sentencing issues such as appellant's reasons-on-the-record and allocution claims are also waived if not properly preserved. Commonwealth v. Martin, 328 Pa. Super. 498, 477 A.2d 555 (1984) (en banc) (reasons on the record); Commonwealth v. Tolassi, 303 Pa. Super. 177, 449 A.2d 636 (1982). To be properly preserved such sentencing issues must be raised (1) at the sentencing hearing, (2) after sentencing in a motion to modify sentence, and (3) on appeal from the judgment of sentence. Commonwealth v. Tomasso, 311 Pa. Super. 103, 457 A.2d 514 (1983), aff'd on other grounds, 506 Pa. 344, 485 A.2d 395 (1984). At none of these stages did appellant mount any attack on the procedure by which he was sentenced.

A third principle worth preliminary mention is the principle of waiver written into the Post Conviction Hearing Act itself. The Act provides that

(b) For the purposes of this act, an issue is waived if:

(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding

[ 342 Pa. Super. Page 269]

    or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and

(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

19 P.S. § 1180-4(b), (c) (emphasis added). See also id. § 1180-5(b):

Any person desiring to obtain relief under this act shall set forth all of his then available grounds for such relief for any particular sentence he is currently serving in such petition and he shall be entitled to only one petition for each such crime. The failure to raise any such issue in such petition shall be deemed a waiver of any right to future presentation of another petition containing grounds for relief that were available and could have been presented.

Appellant has already pursued a collateral attack on his sentence through a prior proceeding under the PCHA, and in that proceeding failed to raise the issues he now wants heard. Under the clear language of the PCHA, appellant has therefore waived the issues presented in the current appeal.

Appellant seeks to avoid the abundant evidence of waiver by alleging that his prior counsel rendered ineffective assistance in all prior proceedings. He contends that his ineffectiveness allegations entitle him to further litigation of his claims under the PCHA, on the premise that ineffectiveness of counsel is an extraordinary circumstance which precludes us from finding waiver under section 1180-4(b)(2) of the Act, supra.

A question of importance before the Court en banc on this appeal is whether appellant's ineffectiveness of counsel allegations automatically entitle him to a forum for his claims under the PCHA; or whether, under the present

[ 342 Pa. Super. Page 270]

    circumstances, appellant's allegations are insufficient to overcome the inference that these claims are waived. We would hold the latter.*fn2

First, with sole regard to appellant's complaint that the informations filed against him contained a rubber-stamped signature, we determined in Commonwealth v. Spiegel, supra, that such a claim is waived if not raised pre-trial, and that ineffectiveness allegations cannot resurrect a rubber stamp claim after conviction. The rationale for the Spiegel holding is simple and compelling: after a case has gone to trial and conviction the interest protected by the requirement of a signed information has ceased to exist. See also Commonwealth v. Veneri, supra. Even assuming that alert counsel should have challenged a rubber-stamped information before trial to insure that a district attorney made a reasoned review of the charges, after a finding of guilt there is no longer an appropriate remedy in criminal court for counsel's failure to have done so. See also Commonwealth v. Watts, 294 Pa. Super. 319, 439 A.2d 1220 (1982); Commonwealth v. Harper, supra (alternative holding).

[ 342 Pa. Super. Page 271]

Furthermore, appellant's allegations of ineffectiveness do not explain away the waiver of the rubber stamp issue that occurred when appellant entered his plea of guilty. It is elementary that ineffectiveness of counsel in connection with a guilty plea will warrant relief only where the ineffectiveness caused the plea to be entered involuntarily or unknowingly. Commonwealth v. Lutz, supra; Commonwealth v. Klinger, 323 Pa. Super. 181, 470 A.2d 540 (1983); Commonwealth v. Edrington, supra. This rule does not mean that counsel will be found ineffective and the plea overturned whenever it can be shown that the defendant was unfamiliar with some arguable point of criminal law. The waiver attending a plea of guilty sweeps away all non-jurisdictional defects and defenses; Commonwealth v. Monaco, 327 Pa. Super. 369, 475 A.2d 843 (1984); the defendant entering the plea may not then understand each and every foregone claim in the same clear light of hindsight by which he later comes to appreciate them. However, his subsequent decision to reassert a waived claim will be to no avail unless the voluntary nature of the plea is called in question. Id. Here the voluntariness of appellant's plea was decided against him in his 1976 appeal; he does not ask us to overturn our earlier decision. But even if appellant's allegations of ineffectiveness were cast in terms of a collateral attack on the plea, we would decline to dredge up and reconsider the plea's validity, because it is inconceivable to us that the style of signature on appellant's informations had anything to do with his decision to plead. See Commonwealth v. Klinger, supra. Notwithstanding the intervening legal developments which gave rise to appellant's claim, the law is now as it was when appellant pled guilty: an information rubber-stamped with a facsimile of the district attorney's signature has the same presumption of validity as a manually signed information. Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983).

Second, with regard to both the rubber stamp issue and the claim that the sentencing court failed to state reasons for the sentence, neither was a viable issue for an attorney

[ 342 Pa. Super. Page 272]

    to raise at the time of appellant's conviction. The validity of rubber-stamped informations did not emerge as an issue in the law of Pennsylvania until the decision in Commonwealth v. Emanuel, 285 Pa. Super. 594, 428 A.2d 204 (1981), rev'd in Emanuel, supra. The requirement that reasons for sentence be put on the record was not established until Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Appellant pled guilty in 1974. Thus, under no circumstances could appellant's counsel be labelled ineffective for failing to raise these issues. Counsel cannot be found ineffective for failing to predict future developments in the law. Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983); Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Bradley, 332 Pa. Super. 99, 480 A.2d 1205 (1984); see also Commonwealth v. Frankhouser, 491 Pa. 171, 420 A.2d 396 (1980) (principle applied to Riggins claim); Commonwealth v. Rivera, 309 Pa. Super. 33, 454 A.2d 1067 (1982) (same); Commonwealth v. Klinger, supra (principle applied to rubber stamp claim); Commonwealth v. Warren, 307 Pa. Super. 221, 453 A.2d 5 (1982) (same). Cf. 19 P.S. § 1180-3(c)(12) (pertaining to raising of rights not recognized as existing at time of trial). Consequently, since there is no basis in law for a finding of ineffectiveness with regard to these two issues, ineffective assistance of counsel cannot provide the extraordinary circumstances that would justify their further litigation now.

Third, we turn to appellant's ineffectiveness allegations with respect to the claim that he was denied the right to speak at sentencing. Again the present attack on counsel is inadequate to resuscitate that claim. Appellant's bare assertion that his allocution rights were denied is made in the absence of any allegation of fact which, if proven, would entitle him to relief. See 19 P.S. § 1180-9. The claim that counsel were ineffective for not preserving these rights is thus stated without supporting facts, and our courts will not consider ineffectiveness claims in the abstract. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984); Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208

[ 342 Pa. Super. Page 273]

(1983); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Brown, 313 Pa. Super. 256, 459 A.2d 837 (1983) (en banc); Commonwealth v. Cottman, 327 Pa. Super. 453, 476 A.2d 40 (1984).

To state a valid claim for collateral relief for a denial of allocution rights, a petitioner must show that he had something to say at sentencing that likely would have had a favorable impact on the sentence imposed. The applicable law is set forth in Commonwealth v. Barton, 312 Pa. Super. 176, 182-83, 458 A.2d 571, 574-75 (1983):

A bare denial of the right to allocution, without evidence that appellant had something to say, will not require the vacation of an otherwise proper sentence. That which he wished to say, moreover, must be such as would likely have influenced the sentence imposed. To require a vacating of the sentence and a subsequent re-sentencing, appellant will have to show that the sentencing judge was either misinformed or uninformed regarding one or more relevant circumstances. The sentence need not be vacated in order to provide appellant an ...


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