COMMONWEALTH of Pennsylvania v. Thomas FELDER, Appellant.
Superior Court of Pennsylvania.
Decided Nov. 22, 1976.
370 A.2d 1214 | 246 Pa. Super. Ct. 324
Submitted June 9, 1975.
Patrick J. Toole, Jr., District Attorney, Wilkes-Barre, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
SPAETH, Judge:
This is an appeal from the denial of a Post Conviction Hearing Act1 petition requesting a new trial and permission to withdraw a guilty plea on the grounds that the plea was unlawfully induced and that appellant was denied effective assistance of counsel.2 We reverse and remand for further proceedings in accordance with the instructions set forth below.
We very much regret the necessity of such an order. The case presents no novel or difficult issue; it should have been routinely and expeditiously disposed of long ago. Instead, appellant was ineffectively represented by counsel at every stage of the proceedings, including this appeal; the lower court committed clear error;3 and the Commonwealth manifested its indifference to the administration of criminal justice by its failure to file any appellate brief.4
It is distressing to make these remarks, the more so as they may be read as implying that we think the conduct of our own business beyond criticism; we know it is not.
I. History of the Case
On January 15, 1974, appellant appeared before President Judge BROMINSKI of Luzerne County, and pleaded guilty to the crime of possessing heroin with intent to deliver. A petition to withdraw the plea was filed on January 22, 1974, by appellant‘s counsel, the first of a line of assistant public defenders to represent appellant. After a hearing on January 30, the President Judge granted the petition because appellant‘s counsel had ignored appellant‘s request that he file a pre-trial suppression motion challenging the validity of the search warrant pursuant to which the heroin was found. In such circumstances, as the President Judge correctly stated in his opinion, “a judicial determination of the validity of the search warrant should be considered.”
At the time, appellant was in the Lackawanna County jail. He claims he wrote to the public defender of Luzerne County and requested that the suppression motion be filed, but that the defender never responded. In any event, no motion was filed.
On February 19, 1974, appellant was again brought to the Luzerne County court. At his PCHA hearing he testified that he thought he had been brought there for a suppression hearing. When he arrived, however, he learned for the first time that he was being represented by a second assistant public defender, that no suppression motion had been filed, and that his purpose for being there was to stand trial. Before the court proceed
At the beginning of this second guilty plea hearing, the district attorney recommended to the court, in accordance with an agreement made with counsel for appellant and his wife, that appellant and his wife not be sentenced until they had been sentenced on charges of which they had been convicted in Lackawanna County. The purpose of this was apparently to leave open the opportunity for concurrent sentences.
The court then conducted the guilty plea colloquy. The portion of the colloquy dealing with the nature of appellant‘s offense consisted entirely of the following:
BY THE COURT: To Mr. and Mrs. Felder. Do you both understand that you have been charged with the crime of possession of a controlled substance with intent to deliver? Mr. Felder?
DEFENDANT THOMAS FELDER: Yes.
BY THE COURT: All right. Do you know the meaning of this charge?
DEFENDANT THOMAS FELDER: Yes, sir.
Defense counsel neither participated in nor objected to the colloquy.
Before the Commonwealth presented evidence to establish the factual basis of the plea, the following exchange regarding the suppression motion occurred:
MR. MUROSKI [district attorney]: One of the reasons that Judge Brominski allowed Mr. and Mrs. Felder to withdraw their previous guilty plea, sir, was to afford them the opportunity of pursuing a motion to suppress the search warrant in the case. I have that search warrant in front of me, Your Honor, and I believe that they should be advised of that right.
BY THE COURT: All right. Now you will recall that the reason the Court allowed you to withdraw your pleas of guilty, by an Opinion and Order dated January 30, 1974, is because you complained to the Court that you wished a hearing on the search warrant in question. Do you now withdraw your request for hearing on the search warrant? Mr. Felder?
DEFENDANT THOMAS FELDER: Yes.
After the Commonwealth presented its evidence, the court accepted the guilty plea and stated: “In accordance with the request made here this morning, the sentence will not be meted out in this matter until after sentence has been imposed on the defendants’ matters in Lackawanna County, at which time both defendants will be notified to appear before this Court for sentencing.”
Sometime after appellant had entered his second guilty plea he was transferred to the State Correctional Institution at Dallas. There he consulted with one LeRoy Frisby, a prisoner-member of the Resident Law Clinic. On May 13, 1974, Frisby wrote a letter on appellant‘s behalf to the court below asking permission to withdraw appellant‘s second guilty plea. On May 15, 1974, the court wrote back to Frisby, that a written petition to withdraw should be submitted. Frisby, however, became in
According to appellant‘s brief, he was not represented by counsel at sentencing, although his wife was. The cover of the sentencing transcript lists one assistant public defender as counsel “for the Defendants.” However, the defender had represented only Mrs. Felder in prior proceedings. If indeed he was also representing appellant, apparently appellant did not know it. Assuming representation, it was less than zealous since the defender did not say one word during the proceedings.
Appellant himself, however, renewed his efforts to withdraw his plea:
DEFENDANT (Thomas Felder): What about the letter the law clerk wrote to you?
BY THE COURT: Mr. Felder, I received a letter on May 15, it was dated May 13, and I immediately wrote back on May 15, to a Mr. LeRoy Frisby, a member of the Resident Law Clinic.
I stated to Mr. Frisby, in the matter of your request that before this guilty plea be permitted to be withdrawn, that a written Petition for Withdrawal of said plea be prepared, signed and notarized, and mailed to me for consideration.
Since I haven‘t heard anything, we are going to go ahead.
DEFENDANT (Thomas Felder): He was mailing it out today.
BY THE COURT: You people have been doing this for some time, entering pleas and then withdrawing them.
You may take whatever steps you wish to take after sentencing. You can appeal and we‘ll advise you of your right to do so.
The court then sentenced appellant to pay costs and to be imprisoned for 3½ to 7 years, this term to run consec
DEFENDANT (Thomas Felder): So the only thing I can appeal on is the sentence, not as far as the charges is concerned?
BY THE COURT: This is correct, yes.
DEFENDANT (Thomas Felder): I‘m denied the right to withdraw?
BY THE COURT: Under all the circumstances, the Court is denying that right. The Court is denying your request to withdraw your plea.
According to appellant‘s PCHA hearing testimony, which the Commonwealth did not dispute, the appellant‘s brief, on the date of sentencing appellant had not yet been sentenced on the Lackawanna County charges, although his wife had been. There was no mention of those charges at sentencing.
On June 13, 1974, eight days after sentencing, appellant filed a petition under the Post Conviction Hearing Act. The court appointed the Chief Public Defender to represent appellant. The Commonwealth answered the petition on June 28, and on July 22, a PCHA hearing was held, at which appellant was represented by yet another assistant public defender.
At the beginning of the hearing the district attorney said: “This concerns a postconviction petition, upon which the Court has ordered a hearing, and I believe that the burden of proof is upon the Defendant in this type proceeding, sir.” The Court replied: “Correct.” Appellant‘s counsel said nothing, and the hearing proceeded.
Appellant and his wife testified on their own behalf, focusing primarily on the alleged unlawful inducement of the second guilty plea. Counsel asked no questions and made no argument regarding the adequacy of the guilty
On August 7, 1974, the court dismissed appellant‘s PCHA petition, and appellant subsequently filed this appeal.8 His counsel on appeal is the same attorney who represented him at the PCHA hearing.
II. Ineffective Assistance of Counsel
A
Before we discuss appellant‘s claim that his several trial counsel were ineffective, it is necessary to note that appellate counsel is in the untenable position of having to argue the ineffectiveness of his own associates in the public defender‘s office. Appellant‘s PCHA petition clearly claimed that the several assistant public defenders who had represented him at the two guilty pleas and at sentencing had been ineffective. The lower court nev
Upon remand, therefore, we shall direct the court to appoint new counsel, not from the public defender‘s office, to represent appellant.10
B
In fact counsel did not advise appellant of the inadequacies of his associates. We do not suggest that this was intentional. Rather, counsel probably assumed that his associates had done an adequate job, with the result that he did not review the record as thoroughly as he would otherwise have done.
Had counsel reviewed the record more thoroughly, he would have discovered that the second guilty plea colloquy was inadequate. Commonwealth v. Ingram, 455 Pa. 198, 203-204, 316 A.2d 77, 80 (1974), requires that an adequate on-the-record colloquy under
Counsel‘s erroneous assumption that the colloquy was adequate caused him to make a second mistake. It will be recalled that at the beginning of the PCHA hearing, without objection from counsel, the district attorney stated, and the court agreed, that the burden of proof was on appellant. In fact, for guilty pleas entered after the decision in Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968), the rule is that if the record colloquy is inadequate, the Commonwealth has the burden of proving that the plea was voluntarily and intelligently made. Commonwealth v. Belgrave, 445 Pa. 311, 285 A.2d 448 (1971); Commonwealth v. Daymude, 227 Pa.Super. 115, 323 A.2d 264 (1974). Since counsel failed to object, the hearing proceeded with the burden on the wrong party.
Finally, counsel also did not discover that trial counsel had taken no direct appeal. Appellant apparently filled out the PCHA petition form by himself or with the help of a Resident Law Clinic member. The form was filed eight days after sentence—well before the time for filing a direct appeal had expired. Appellant had stated at sentencing that he wanted to appeal, and he may well have thought that filing the PCHA petition was an appeal. Had counsel been more attentive, he could have withdrawn the PCHA petition and filed a direct appeal (or if necessary, have obtained leave of court to file nunc pro tunc). Following correct procedure would have relieved this court of the task of determining whether the case was properly before us. See footnote 7, supra.
C
Of the theories of ineffectiveness that appellate counsel has raised in his brief to us, the one most urgently pressed is that trial counsel was ineffective in not filing a suppression motion. In support of this theory it may be noted that although counsel will not be declared ineffective for not filing a motion that would be fruitless, Commonwealth v. Robinson, 452 Pa. 316, 305 A.2d 354 (1973), ordinarily there is little tactical reason for not filing a suppression motion. Commonwealth v. Hill, supra.
Nevertheless, on the record we cannot say that trial counsel was ineffective. We cannot tell whether the motion would have been fruitless. The search warrant itself is in the record, but the affidavit of probable cause is not. Appellant‘s trial counsel did not testify at the PCHA hearing so we do not know why they did not file the motion.11 In addition, appellant told the lower court
Appellate counsel also argues that trial counsel was ineffective for not interviewing or advising appellant before trial. The fact that only a short time was spent in conference with a client, however, does not per se establish ineffective assistance of counsel. Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973).
Finally, appellate counsel argues that appellant was denied effective assistance of counsel because he was not represented by counsel at sentencing. There is no doubt that appellant was constitutionally entitled to counsel at sentencing since it is a “critical stage” in the criminal proceedings. Commonwealth v. Morales, 444 Pa. 388, 282 A.2d 391 (1972); Commonwealth ex rel. Mullins v. Maroney, 428 Pa. 195, 236 A.2d 781 (1968). Also see
III. Unlawful Inducement of Guilty Plea
There is one issue both meritorious and sufficiently preserved. It is that appellant should be permitted to withdraw his guilty plea because he was induced to plead by a plea bargain that the lower court agreed to on the record at the guilty plea hearing but did not honor at sentencing. Specifically, appellant points out that the court imposed sentence before sentence had been imposed in Lackawanna County, despite the court‘s statement, when accepting the plea, that “[i]n accordance with the request made here this morning, the sentence will not be
If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.
Withdrawal is required because it would be unfair to accept a guilty plea that was induced in part by a particular sentence concession and then not grant that concession. Commonwealth v. Barrett, 223 Pa.Super. 163, 299 A.2d 30 (1972). This is particularly so where, as here, the judge has stated on the record that he would grant the concession.
The remedy for a dishonored bargain is to reverse the defendant‘s conviction and remand to permit the defendant to withdraw his guilty plea. Commonwealth v. Sutherland, 234 Pa.Super. 520, 340 A.2d 582 (1975); Commonwealth v. Wilson, 234 Pa.Super. 7, 335 A.2d 777 (1975); Commonwealth v. Barrett, supra. We shall do so here. Any new proceeding should take place before a judge who did not participate in the original sentencing. Commonwealth v. Evans, 434 Pa. 52, 56*, 252 A.2d 689, 691* (1969); Commonwealth v. Wilson, supra; Commonwealth v. Barrett, supra.
WATKINS, President Judge, and PRICE, J., concur in the result.
VAN der VOORT, J., files a concurring and dissenting opinion in which HOFFMAN, J., joins.
VAN der VOORT, Judge, concurring and dissenting:
I respectfully dissent from that part of our Order which requires that “Any new proceeding should take place before a Judge who did not participate in the original sentencing.” I believe that any Judge presiding in Luzerne County may properly handle any further proceedings in this case.
HOFFMAN, J., joins in this opinion.