*1 Pennsylvania, Appellant, COMMONWEALTH of BENNETT, Appellee. Kirk Otto Supreme Pennsylvania.
Argued June 1986.
Decided Nov. *2 Holtzinger-Conner, Atty., E. Asst. Dist. Wil- Katherene Behe, Harrisburg, appellant. for A. liam for Calkin, Harrisburg, appellee. A. Judith FLAHERTY, NIX, C.J., LARSEN, and Before HUTCHINSON, McDERMOTT, ZAPPALA PAPADAKOS, JJ. THE COURT
OPINION OF LARSEN, Justice. a claim of ineffective within the context of appeal,
In this the of counsel, text of we address whether assistance 319(b)(3) read or communicated Rule must be Pa.R.Crim.P. sentencing, at the time to criminal defendant or before a of plea the terms a rejected court has when 319(b)(3) follows: Rule as agreement. reads understanding^ is plea judge If the satisfied If accept plea. tendered, he voluntarily may in the to concur judgе decides not thereafter his the defendant to withdraw permit he shall agreement, 11, 1980, Kirk Otto January During waning hours co-defendant, Ross, Bennett, Nead a Jeffrey appellee, attempted manager to rob an assistant Elby’s an Restau- rant in Lower Paxton Township, Dauphin County. The just shift, victim had completed and, his afternoon bearing $3,000 cash receipts nearly customary at deposit bank, he local left the restaurant and approached his van. Appellee, by admission, his own shot the victim once in the back a .22 with caliber rifle and the victim died an within hour.
On appellee June pleaded guilty general murder, charge of robbery аnd conspiracy pursuant plea agreement. terms of His an came after exhaus- tive which colloquy appellee’s understanding demonstrated prescribed by 319,1 (1) all matters including nature of charges appellee pleading would be (2) guilty; pleas; (3) the factual basis for the rights waiving entering pleas; would be his *3 (5) innоcence; of presumption range the of sentences (6) the charged; offenses and the in judge’s discretion either accepting or rejecting plea agreement. the Agreements 1. Rule 319. Pleas Plea and (a) Generally. open shall Pleas be taken in A defendant court. or, court, may plead guilty, guilty, not with thе of the nolo consent may accept guilty, judge plea cotender. The refuse to a of and shall accept inquiry not it unless of he determines after the defendant plea voluntarily understandingly that the is and tendered. Such inquiry appear shall on the record. If the defendant shall refuse to plead, plea guilty court the shall enter a not on the of defendant’s behalf. (b) Agreements. Plea (1) judge participate plea negotiations The trial in shall the agreement. preceding an (2) plea When agreement counsel for both sides a have arrived at court, they open presence state shall on thе record in the in the of defendant, agreement. judge the the Thereupon terms of the shall inquiry the conduct an of defendant on the record determine agreement. whether he and in understands concurs the judge plea understandingly If the is satisfied that the is and tendered, voluntarily may accept plea. he the If thereafter the judge plea agreement, permit decides to concur in the he shall plea. the defendant withdraw his (c) imposition Murder Cases. In cases in which the of a sentence authorized, of plea death is not guilty when defendant enters a charge generally, judge to a of murder before whom the degreе was guilt. entered shall alone determine the agreement fully delineated on The terms of the were that of the court and to ensure for the benefit the record terms. voluntarily assented to those appellee knowingly promised the Commonwealth explained The prosecutor recommend, of extant circumstanc- spite aggravating the court charge on the murder should es, a life sentence degree first and sentences on guilt at murder assess concurrently charges to run conspiracy robbery sentence, exchange coopera- for appellee’s life with testimony for appellee’s and others and in this case tion prosecutor Ross.2 The court and co-defendant against during colloquy the court several times stressed sentences and the maximum allowable impose free to was prosecu- which the by the recommendations not bound was also Appellee to make to the court.3 promised tor guilty rights the limited informed about appel- court found following day, June re- degree first of murder guilty lee sentence on the conviction determine the jury quested by the provided as Sentenc- degree, for murder of first nonjury Procedure 9711(b), Code, 42 Pa.C.S.A. ing § actually testimony required because his co-de- Appellеe’s was not charges at time. guilty plea to the same entered a fendant also Testimony typical exchange appears page at 7 of the Notes A3. (N.T.), 1980: June going is to seek murder COURT: And the Commonwealth THE guilt up degree to the Court. but the determination the first clear? Is that Yes. THE DEFENDANT: Furthermore, you in the of murder if are found COURT: THE penalties. penalty of death and degree There is are two first there *4 will imprisonment. While the Commonwealth penalty life find murder the Court Court that should recommend to the they penalty, that recommen- degree, impose the death not first binding that? Court. You understand on the dation DEFENDANT: Yes. THE penalty. you Do the death Court cоuld find That the THE COURT: understand that? Yes. THE DEFENDANT: right. All Proceed. THE COURT: they will make recommendations And the other THE COURT: concurrent; only they recommenda- are sentences be that other you I to understand. That’s what want tions. pleas. and The prosecutor trials asked the court to findings guilt enter for the record on the robbery and charges. cоnspiracy The court found appellee guilty on charges imposed those of ten sentences to twenty years robbery five to ten for years conspiracy, “to be to any consecutive other sentence that is imposed to be N.T., 24, June jury.” 1980 at 123 (emphasis added). were contrary These sentences to the plea agreement, provided that all sentences were be concurrent. No reference was made at that time agreement, 319(b)(3). or to contents Rule next June day, following evidentiary an hearing, a fixed jury penalty imprisonment at life on the conviction for murder of the first degree. During the closing arguments, the prosecutor had recommended a life as promised sentence in the plea agreement, and he and defense counsel had appellee’s drawn attention to coopera- tion with the authorities. The court then appel- sentenced lee, stating: jury accordance with I verdict sentence you to
imprisonment for I life and previously have sentenced I you, think on yesterday, robbery and conspiracy charges. days appeal You have thirty judgment sentence to Supreme Court. You have ten days to your withdraw guilty pleas. If wish you any to take steps any these legal or other steрs are within your rights ... appointed court has represent counsel to [t]he you charge without and he will continue to represent you if you legal desire to take any further action.
N.T., June 1980 at 87-88. taken,
No did file petition pleas withdraw his guilty days within 10 of sentencing as required by Pa.R.Crim.P. Rule 321. Trial counsel subse- quently case, although from withdrew he arrange did November, 1980, for appellee’s protection from his co-de- in prison. fendants On July appellee filed a pro se petition under (PCHA), the Post Hearing Conviction Act 9541-9551, Pa.C.S.A. alleging ineffective assistance of §§ *5 530 appellee in failed to advise of his
counsel trial counsel to his and that trial counsel right petition to withdraw being requested an after tо do so.4 appeal to file failed to and the appointed represent appellee New counsel petition PCHA were addressed by appellee’s matters raised same during hearing a before on October pleas and had sentenced accepted appellee’s hаd judge who him. for
The court held that counsel was not ineffective trial petition of his to to withdraw failing appellee right to advise by the court of appellee had been advised plea, his because plea at the time of petition to to withdraw his right his court, addition, implication, the trial sentencing. by In pеtition, found that dismissing appellee’s PCHA therefore, file appeal, counsel an requested file an failing appeal. for to was not ineffective counsel petition of his PCHA to the dismissal Appellee appealed instruc- Court, reversed and remanded with Superior In a guilty pleas. to his permit appellee withdraw tions Court Superior opinion, panel memorandum divided sponte raised sua ineffec- and determined that counsel was interests at the acting protect his client’s for not tive court request that the by “failing proceeding “defective” the Common- granted This with Rule 319.” Court comply Appeal. Petition Allowance wealth’s upon an issue decided the case Superior Court Since Pa.R. petition, we reverse. PCHA appellee’s raised Clair, 458 Pa. see Commonwealth 1501(b); Crim.P. However, parties as the (1974). inasmuch A.2d 272 the merits of the waived issue argued have briefed the matter shall discuss economy,5 we judicial for reasоns of herein. alleged plea to murder petition that his Appellee his PCHA also
4.
year
sentence
unlawfully
promise
10-20
induced
had been
charge.
abandoned as it
degree
This issue has been
murder
on third
Superior
or to this Court.
presented
Court
on the
was not
opinion
Superior
night,
by the
day
buttressed
As
follows
case,
petition
a second PCHA
appellee will
before us with
stand
this
appellate
counsel.
alleging
of trial
ineffective assistance
reviewing
standard for
an ineffective assistance of
*6
counsel
as
claim remains
Commonwealth ex
propounded
Washington
rel.
Maroney,
v.
599,
427
Pa.
This Court reiterated the appellate standards reviewing of counsel; claims ineffective assistance Anderson, v. Commonwealth 501 Pa. 461 208, (1983) A.2d 213 we stated: guided
We remain by standards first articulated ex rel. Washington Commonwealth v. Maroney, 427 599, 605-06, 349, (1967): Pa. 235 A.2d 352-53 assistance is deemed constitutionally effec- [C]ounsel’s tive once we are able to conclude that the particular chosen some reasonable basis course counsel had designed to effectuate his client’s interests.
The test is not whether other alternatives were more reasonable, employing a hindsight evаluation Although weigh record. must, alternatives we tips balance finding favor of effective assistance as soon as it is determined that trial counsel’s decisions any basis. reasonable Moreover, counsel will be deemed ineffective for failing raise baseless or frivolous issues. Common- Arthur, wealth v. 262, 265, 488 Pa. (1980). only It is when the сlaim has is of foregone been arguable merit that inquiry further must be into made the basis for counsel’s pursue decision not to the mat- Hubbard, Commonwealth v. ter. 259, Pa. 277- 472 278, 687, (1977). 372 A.2d 696
Moreover, as in Maroney: we stated
Cases such as Commonwealth ex rel. Gallagher Rundle, 356, and Common- (1966) 423 223 736 Pa. A.2d Maroney, wealth ex rel. Jones v. 417 Pa. 209 A.2d that, granted, appellant indicate for relief to be ineffectiveness must demonstrate that counsel’s worked to his prejudice. 8, n. 235 A.2d at n. 8.
The Court incorrect. Rule 319(b)(3)to the defendant is read Rule must be communicated right not create a that must 319(b)(3)does A language contained therein. of the by judicial incantаtion the court protected when adequately are rights defendant’s right of the to sentencing the time of a defendant at advises appeal. take an the and/or to plea to withdraw petition if court does a directive to the court the simply Rule is plea agreement of the with the terms not conсur in a man plea timely the to withdraw petitions defendant the ner, permit the withdrawal of must court whether deciding themselves capable are Defendants imposed, and the sentence are satisfied with they or not within any dissatisfaction they voice requires law had Appellee rule. prescribed by and in the mannеr time plea his to withdraw right petition to advised of his been rights. not to exercise said and chose file an and to Appellee upon Fazenbaker, relies Commonwealth v. (1977),
Pa.Super. Court, as did Superior support his that the was position required specifi- court cally inform him at the it sentencing time rejected plea agreement, the terms of the that if petition plea, defendant filed a his then withdraw mandatorily granted. that withdrawal would be This re- misplaced. The trial accepted liance court Fazenbaker plea defendant’s and four later him in months sentenced excess of the Commonwealth’s recommendation. Fazenbak- petitioned permission er the court for his guilty withdraw within 10 days sentencing, the trial court denied petition. Superior Court correctly judg- vacated ment of pursuant 319(b)(3), sentence Fazenbaker to Rule rejects for when a court of a plea agreement, terms Rule requires grant that that court a timely рetition for of guilty plea. withdrawal Fazenbaker had petitioned the court fashion to timely plea upon withdraw his guilty the court’s beyond parameters whereas, bargain, case, appellee this did not timely petition pleas. to withdraw his merit,
As appellee’s underlying appel- contention lacks leе’s counsel ineffective. See Commonwealth v. Hubbard, supra.
The order of Superior reversing the order of *8 the Court of Pleas remanding Common with instruc- tions to permit appellee to withdraw his pleas is reversed.
ZAPPALA, J., concurred in result. NIX, C.J., a dissenting opinion. filed
JUDGMENT WHEREOF, ON CONSIDERATION it is now hereby ordered and adjudged by this Court that the order of Superior reversing Court of the order Court of Common rеmanding Pleas and permit appellee with instructions to to guilty pleas withdraw his is reversed.
534 Justice, dissenting.
NIX, Chief pro se petition under the Post Conviction filed a Appellee, seq., alleging et Act, 9541 ineffective 42 Pa.C.S. Hearing § failing counsel to advise trial assistance plea agreement provid- court’s failure to follow the trial right to withdraw his See the absolute ed him with 319(b)(3). right under Pa.R.Crim.P. Rule Pa.R.Crim.P. from the days a defendant ten 321 which affords is far seek withdrawal time of he being grounds from his advised that different relief. obtain may decided the mat- Superior have
Although, it, presented properly issue that had been ter on an by the order appellee justified raised the issue remanding permit with instructions reversal should have plea; and that order been withdrawal if affirm an order ground. We should upon that sustained reason, the reason relied regardless of any it correct Kane, 269, Gwinn v. 465 Pa. 348 on the court below. Korvette, Inc., 457 Pa. 602, 327 Gilbert v. (1975); A.2d 900 Wian, Powell, Inc. v. Pa. Justin J. (1974); A.2d 94 (1974). therefore dissent. I 318 A.2d Pennsylvania, PENNSYLVANIA COMMONWEALTH POLICE, Appellant, STATE Pennsylvania, PENNSYLVANIA COMMONWEALTH and Governor COMMISSION RELATIONS HUMAN Williams, Appellee. Pennsylvania. Supreme Court of Argued May 1986. Nov. Decided