*1 not authorize plainly it does it is enacted legislation Accordingly, services. paraprofessional of fees for award of the Commonwealth I affirm the decision would because cannot claimant compensation worker’s finding that a Court respectfully I by paraprofessionals, generated recover fees dissent.
854A.2d 489 Pennsylvania, Appellant COMMONWEALTH FLANAGAN, Appellee. Dennis Pennsylvania. Supreme Court of April 2004. Re-submitted July 2004. Decided Reargument Sept. 2004. Denied *2 Gibbons, B. Stephen Diaz, Diane E. Doylestown, Ann Karen PA. Harris, for the Com. Warrington, Flanagan. Miller, for Dennis Langhorne, L. Randall NEWMAN, CASTILLE, NIGRO, C.J., CAPPY, BEFORE: BAER, SAYLOR, JJ. EAKIN and
OPINION Justice SAYLOR. Superior challenges the
In this the Commonwealth appeal, au- properly post-conviction conclusion Court’s absence on the guilty pleas grounded a withdrawal thorized basis of the factual discussion from *3 pleas. supporting Redman, robbed, victim, was James July
On later, appellee, arrested beaten, days police and killed. Ten Yacob, on an affidavit George based Flanagan, and Dennis to persons interviews with detailing police cause probable having Yacob had admitted Flanagan and whom both man, circum- assaulted, robbed, describing while and killed Mr. surrounding Redman’s resembling those closely stances arrest, Yacob Flanagan provided and Following their death. roles in the events respective their describing statements to the murder. leading related that he and Flanagan to police,
In his statement on Mr. on account non-fatal assault Redman planned Yacob having and his made orientation sexual Mr. Redman’s indicated that he Flanagan Yacob. advances toward in his automobile Mr. Redman to meet with arranged Yacob Flanagan park, industrial him to a remote lured under the beating, location for the as a suitable selected Mr. sexual relations with would have pretext Flanagan account, the vehicle to this while According Redman. it, an of Mr. Redman made outside and Yacob was parked toward who him Flanagan, pushed away, got advance out of car, happened. and told Yacob what had The three then vehicle, drove a short distance and Flanagan exited the with Mr. pushing against holding Redman the car and him there (Flanagan purported having defensively, done so believing him). may Mr. Redman have intended to assault Flanagan described the events that largely followed as a Yacob, of acts out by series carried who purportedly: began taunting, hitting, Redman; Mr. kicking demanded Mr. Redman’s wallet and car keys; gave keys Flanagan instructed him to move vehicle the front of the industri- and, al and wait park twenty minutes before returning; when (Yacob) returned, did so and Flanagan announced that he had head, face, a rock on dropped Mr. Redman’s kicked him in the him and choked with a bandana. Flanagan purported having they ambulance, asked Yacob if should call an and to from Yacob’s having response inferred that Mr. Redman was or Flanagan dead near death. also admitted that: he ac- quiesced leaving the scene without attempting to personally condition; Mr. verify personal Redman’s of Mr. items Red- man’s were thrown from the vehicle upon leaving the industri- park; al he and Yacob drove the automobile around local area in days following killing, took it on then Jersey women; excursion to the New young shore with several planned and he and Yacob by hiding conceal their crimes or “dumping” the vehicle.
In his to police, statement Yacob on claimed evening killing, joined he and Mr. Red- automobile, man in his believing they would be taken *4 trip to obtain and illicit drugs. consume Yacob indicated that Mr. Redman diverted to the park, industrial where he made and, advances toward in Flanagan confrontation, an ensuing approached Yacob with a purport knife. The of Yacob’s initial statement was essentially that he had Mr. killed Redman inadvertently self-defense, and in and that had Flanagan or participated played significant a part killing or in the that struggle assertedly preceded had it. At the time of his arrest, injuries. Yacob’s hands bore impact Flanagan hearing, charges against Following preliminary a alia, inter mur- second-degree first- and including, Yacob to the common der, conspiracy were bound over robbery, and court, notice of its intention gave pleas and the Commonwealth who was at Flanagan, penalty. of the death imposition seek old, juvenile court. sought transfer years the time seventeen convened, during was hearings A of decertification series testified, substantially different Flanagan offering which killing than he circumstances Mr. Redman’s account Flanagan’s decertifica- police. had related his statement initial testimony mirrored Yacob’s statement hearing tion joined Mr. they'had Yacob that the claim that he and believed excursion, Mr. for and that Redman drug-related Redman stop at which to park the industrial location selected Flana- Flanagan that unknown to and Yacob. reasons were (based on that he understood at the time Yacob’s gan testified assertion) possession; that Mr. Redman had a knife his also Yacob to a knife on occasion. carry knew Flanagan’s
The remainder of account the decertification stated hearing loosely police. tracked his statement He advances; Yacob immediately Mr. Redman made sexual violence, from responded pulling with Mr. Redman the vehicle him; ensued, hitting struggle during Flanagan Mr. Mr. pushed only grabbed leg; Redman after Redman as the confrontation between Yacob and Mr. Redman contin- ued, Yacob for a Flanagan period instructed leave the scene time; returned, Flanagan and when Yacob was alone and that Mr. implied Redman been killed. On direct examina- tion, Flanagan prior agreement testified that he had no with Redman, Yacob to assault Mr. but that his frame mind if necessary. that he would defend himself and Yacob On cross-examination, however, Flanagan admitted he and Yacob had made a to assault Mr. Redman if prior agreement during trip.1 Flanagan’s prior sexual advances were made police, 1. In contrast to his statement to in this version of the events Flanagan longer admitting having agreed was no with Yacob to believing Mr. was amenable to deceive Redman into Thus, having Flanagan newly sexual relations with him. took the *5 cross- extensively on direct and statement was discussed examination, various having and he admitted to fabricated it, to so he knew that portions claiming have done because conform his killing, had to the and wished to Yacob confessed police they to Yacob’s tell “what want[ed] account and/or hearings, pleas At conclusion of the the common hear.” the court denied decertification. followed, at hearing
A which the Common- suppression signed from who presented testimony wealth the detectives alia, cause, related, who inter witness probable the affidavit of conversations with Yacob descriptions inculpatory and/or rob- participation in which the of both men Flanagan briefly also bery/homicide (Flanagan was described testified relief). denied, of his for support request Suppression first-degree Yacob murder subsequently pled and, offenses, plea agreement, and the related as a result of a life-imprisonment. was sentenced to time, By discovery the Commonwealth had filed re- containing including witness statements those of a sponses who that Flan- young acquaintance affirmed overheard discussing plans severely and Yacob to rob and beat a agan days prior they man whom believed be homosexual murder, as evening to and on the well several who and Yacob admitted to persons Flanagan attested in'a having joint physical beaten and killed a man and verbal discriminatory Among assault motivated animus. the lat- by who New young ter was one women had traveled Jersey Flanagan. shore with Yacob and She affirmed vic- having personally had admitted to stabbed the assault, during conveyed tim the course to a exposed prolonged period suffering, victim was throughout pled mercy. which he later, on for commencement of days day Two scheduled trial, see Pa. Flanagan pled guilty generally, murder 352), (formerly robbery, conspiracy R.Crim.P. Rule At robbery. plea hearing, Flanagan’s commit murder and planned position that an on Mr. Redman was neither assault purpose foregone of the encounter nor a conclusion. information Flanagan had endorsed noted that counsel colloquy by its opened guilty, and pleading to the *6 guilty pleas to if wished enter Flanagan asking information, to which Flana in the criminal contained charges cor court then The in the affirmative. responded gan with of the crimes elements the various elucidated rectly various defens delineated charged; had been Flanagan which burden of innocence and the es; presumption described prosecution; in a criminal on the Commonwealth proof resting jury to trial a right a a that he had Flanagan admonished ranges of verdict; applicable specified a unanimous on subject pleas. that were for the offenses punishment murder, affirmed to open plea respect With result, initially presumed it was as a understanding (third- of murder degree of the lowest that he was mur third-degree court also elaborated degree). as follows: concept malice der and the attendant means, to be a hardness Malice, is said generally speaking heart, is his social disregarding or a heart that a mind contrary you know be acting way duty, Malice can mean a standards. proper acceptable, ethical or it can be malice, person of a particular a hatred direct indirectly by generalized or generally speaking manifested heart, of disposition. wickedness hardness killing is an unlawful another degree third Murder However, you. with malice. I’ve defined malice person degree as first distinction is that where say we that the that for third killing say must an intentional we murder be but rather need not be intentional killing murder the degree grevious bodily or be to inflict serious that the intention dies, someone, doing if as a result of that he harm upon if in fact the intention degree third murder that would be bodily inflict harm. to kill but to serious necessarily was not that? you Do understand Yes, sir.
MR. FLANAGAN: of a and mechanics Further, purpose explained the court bur- as well as the Commonwealth’s hearing, degree-of-guilt than prove higher degree third-degree, den to murder beyond a reasonable doubt. Flanagan’s
In with to commit conspiracy connection robbery, explained concept murder and the court the central of an agreement:
Now, you pleading guilty conspiracy are to commit robbery and murder.
A conspiracy any people committed when two or more into an to commit a if agreement any enter crime one of the commits an act in co-conspirators overt furtherance of that agreement. An overt act means substantial to- step they ward the commission of crime have agreed commit.
youDo understand that? Yes,
MR. FLANAGAN: sir. *7 Additionally, during colloquy, Flanagan acknowledged the generalized by entering a fashion his pleas, he was each of admitting having specified committed the crimes. Flanagan also affirmed that he had afforded been sufficient and opportunity time consult with counsel and his parents, and that was with his legal representation. he satisfied however,
During the course of the colloquy, plea the court First, appeal. committed two errors- that are relevant to this it plea, failed adduce the factual basis for the see Pa. (comment) 319); (formerly R.Crim.P. 590 Pa.R.Crim.P. Com Willis, 50, 51-52, monwealth v. 471 Pa. 369 A.2d (1977) (reflecting the for mandatory requirement plea a court plea during adduce factual basis the a guilty plea instead, court colloquy); merely the alluded to its basic famil iarity with the underlying plea. circumstances the The erroneously court then advised accomplice theo ry accomplice “any renders an liable for by crimes committed any accomplice regardless other of whether a ac particular complice particular the about committed crime which we are talking.”2 The court elaborated as follows: 306(d) Culpability accomplice prescribed 2. of an is in Section Code, 306(d), § Crimes 18 Pa.C.S. as follows: accom- if are who are people THE So that there COURT: murder, crime, of a of a commission commission plices the theft, if commission of a and in a commission robbery, of a if commits the crime but the other actually only one them him, him, aiding is he is accomplice, helping is his he person it, the who committing person him then assisting he is cooperates equally guilty helps aids and assists and person crimes committed any commission aided.
Do that? you understand Yes, sir.
MR. FLANAGAN: added). discussion of Despite the absence of (emphasis colloquy, and pleas during factual basis for the accomplice liability, explanation court’s erroneous objection, accept- no the court counsel offered Flanagan’s pleas. ed the pleas,
Immediately following entry Flanagan’s hearing pleas degree-of-guilt common commenced open plea to the to murder. The Commonwealth pertaining con- experts from and scientific introduced evidence medical injuries of Mr. cerning severity (separated Redman’s fractures, con- larynx hemorrhaging, skull and cerebral scalp, trunk, deep penetrating right- tusions to wound to the area), blunt pathological diagnosis multiple side rib head, neck, trunk; and the substantial impacts prolonged period likelihood that Mr. Redman endured body who discovered Mr. Redman’s suffering. person location under a to its concealment a remote testified *8 recovery of A testified to the pile substantial debris. detective from the personal property along of items of Mr. Redman’s discovery from the leading killing, roadside the scene (d) accomplice.—When causing particular Culpability a result is offense, causing accomplice element of an an in the conduct such offense, accomplice in commission of that if he acts result is an culpability, any, respect if to that result that is with the kind of with sufficient for the commission of the offense. Thus, accomplice, person with the to be convicted as an a must act murder, rea, third-degree requisite example, in the case of mens develop aspect accomplice with malice. The court failed and, indeed, colloquy. liability theory contrary in indicated to the its of a witness to during
Mr. Redman’s automobile the interview killing, Yacob an account of the Flanagan whom related and/or vehicle, from the identifica- gathering evidence and tion of various to have been used implements believed rock to smash Mr. Redman’s skull. killing, including the used from Mr. Fingerprints gathered and hairs Redman’s vehicle belonging Flanagan and Yacob. The were identified and Flanagan’s planning robbery/as- witness to Yacob’s testified, him, that indicating they sault had discussed with alia, inter the victim in such a condition as plan leave them; him he also incapable implicating would render alia, that Yacob stated, inter him a bloody showed knife day testimony after murder. The Commonwealth offered traveling companion during from who stated the female shore, Jersey Flanagan boasted that he trip the New beaten, stabbed, had and killed man to obtain the car. She that Yacob his and participation also indicated admitted appeared her a knife with a substance on it that be showed Further, that Flanagan blood. she reiterated both and Yacob they that because the explained planned robbery/homicide victim A with Flana- prisoner was a homosexual. incarcerated that told him that had stabbed a gan Flanagan testified he man not because he did like sexual orientation.3 testified, Yacob his earlier statements
Finally, recanting that Flanagan had been involved the murder that to kill Mr. explaining Flanagan plan devised money preceding and to take his car and in the weeks Redman the murder. Yacob admitted Mr. Redman had never had arriving a knife or kind. After at the industrial weapon testified, Flanagan participated Yacob both he and park, assaults, prolonged physical and severe verbal and while Redman, Yacob Mr. took from choking the knife addition, Mr. In pocket Yacob’s and stabbed Redman twice. Yacob Mr. Flanagan bludgeoned stated Redman’s head credibility 3. We of the Commonwealth’s witnesses did not note that the go example, Flanagan developed unassailed. For cross-examination traveling companion marijuana that his was under the influence of throughout Jersey, trip prisoner New confidant was a friend of Yacob’s. *9 long it too rock, commenting taking that was after with the him money that the two used the Yacob admitted to die. alcohol, gasoline, drugs, to buy from Mr. Redman stolen had never he, and Mr. Redman Flanagan, confirmed that rather, but illegal drugs, to obtain any trip out on set of to the luring from the Mr. Redman encounter resulted and killed. The Commonwealth park industrial to be robbed in which he police statement Flanagan’s also introduced with Yacob to assault Mr. prior agreement had admitted to a Redman, materially account that as well as the different hearing. related at decertification Flanagan degree-of-guilt present did not evidence however, felony- that hearing; his counsel contended account, as, apply according only murder rule did not to his subsequent to rob Mr. to the developed intent Redman Yacob, court to urged murder. Counsel also disbelieve supported that the a version the events arguing evidence accounts, and asked that the Flanagan’s more line with a murder. Coun- guilty third-degree court enter verdict as follows: argument sel summarized his If that his you testimony Flanagan, believe the Dennis George on that was to with Yacob night conspire intent Yacob, go place George to a with James Redman and where Redman would be beaten and that that was the James that a purpose conspiracy, beating that result intent, did not form an they murder occurred and not form to take a car until perpetrator did intent occurred, not after the murder that the murder did occur and, underlying felony there- during perpetration fore, felony apply. murder rule would affair; it’s not Dennis Flana- George This is Yacob’s whole .... was not his that there would be a gan’s expectation [I]t somebody It was his killing. certainly expectation (sic) fact, beaten, to that plead be and he would in a beating up the fact that the ended death. court, however, a verdict of pleas
The common rendered Flanagan ex- guilt charge first-degree on the murder. jury penalty to a in the pressed right desire waive colloquy, explaining and the conducted phase, *10 first-degree in a murder penalty proceeding character of a case, mitigating and delineating statutory aggravating the circumstances,, admonishing Flanagan right had a to in At unanimity the verdict. the jury determination common court found proceeding, pleas conclusion of the the that, although aggravating present (killing circumstances were 9711(d)(6)), § felony, in of a 42 Pa.C.S. there perpetration the factors to and thus mitigating outweigh were sufficient them Accordingly, of the death prevent imposition penalty. to the to with a Flanagan imprisonment, the court sentenced life twenty years’ of to for the concurrent term ten incarceration commit robbery conspiracy robbery to convictions. motion, chal- sentencing, Flanagan post-verdict After filed decertify common court’s the lenging only pleas refusal court, juvenile Superior matter which was denied. The affirmed, Court and this Court denied allocatur. pro se
In May Flanagan petition filed a under the Act, §§ Hearing Post 9541-9551 former Conviction Pa.C.S. alia, (the “PCHA”). inter contended, Flanagan (superseded) induced; unlawfully guilty plea plea colloquy his was deficient; was trial counsel was for inade- giving ineffective in quate advocating guilty pleas; advice and he was need pleas; mental health treatment at the time he entered his in did not Mr. Redman’s murder and had no intent participate self-defense; kill; in only he hit Mr. Redman he was occurred; intoxicated when the crimes and he wished to call an Although post-conviction ambulance after the attack. to assist immediately appointed Flanagan counsel with his dormant for petition, years. the case remained ten
In a motion for Flanagan appoint- March filed requested evidentiary hearing ment new counsel and regarding petition. the matters raised his He also se pro filed a and an petition amended extensive memorandum law, his asserting accepting court erred object pleas, failing and his counsel was ineffective for alia, inter on, plea colloquy, to the based of a absence predicate pleas factual for the and the errors and omissions in co-conspirator accomplice and descriptions court’s in an resulted position took the Flanagan liability, time he mindset at the to his own As unknowing plea. offered that he Flanagan pleas, entered instruct- subsequently believed, part mistakenly (to up” the Yacob “beat ed, hatched with plan loose that the and the failure victim), beating, stop failure to him as the killing rendered immediately report course, tragic misunder- this is killer, Yacob. Of George law. standing of the trial counsel was ineffective also asserted that degree-of- during witnesses favorable
failing present Yacob had relat- to whom particular, persons guilt hearing, killed Mr. Redman having himself his initial accounts ed *11 Flanagan’s and in absence. alone counsel and for- new appointed post-conviction without Flanagan’s petition,
mally allowed the amendment ap- different After several objection by the Commonwealth. counsel, petition on the collateral hearing a pointments accepted who judge 2000. As the trial September, in occurred guilt degree over the guilty pleas presided Flanagan’s retired, in judge administered a different hearing had since proceedings. the collateral his but hearing, presented not at the
Flanagan testify did his that he entered day account of the events on the mother’s and her husband stated that she Flanagan Mrs. guilty pleas. selection was believing jury that at the courthouse arrived courtroom, however, Flana- they were inside begin. Once it in their son that was asked them to convince gan’s attorneys to the nature plead guilty, due his best interests testified of a death sentence. She possibility crime guilty during unwillingness plead an expressed that son her why that he did not understand and indicated this discussion he was plea, him to such a because attorneys his wanted enter murder. for Mr. Redman’s responsible testimony Flanagan’s presented The Commonwealth that, counsel, incriminatory evidence given who stated and particularly heinous circumstances kill- surrounding the ing, Flanagan’s best of avoiding penalty chance the death was open plea, enter the jury counsel believed that a would return verdict In first-degree regard, murder. explained counsel in his experience, the presiding judge imposed had never in any sentence death murder case. also He stated that Flanagan privately admitted to partic- ipating in assault on Mr. Redman and inculpated himself murder, testified, and that if Flanagan would have would have had to complicity. have admitted such Concerning the plea colloquy, counsel was of the opinion adequate factual record, basis for the existed as the evidence prior adduced at proceedings incorporated into collo- quy by view, In reference. counsel’s Flanagan’s plea was knowingly, voluntarily, and intelligently entered.
The Commonwealth subsequently filed motion to dismiss alia, inter Flanagan’s petition, arguing, the amended petition was untimely under the one-year fifing limitation imposed Act, by the Post Conviction Relief Pa.C.S. (the “Act”). §§ 9541-9546 or See “PCRA” Pa.C.S. merits, § 9545.4 As to the the Commonwealth contended that burden, satisfy failed to arguing, particular, the factual basis for Flanagan’s pleas was adduced during detail the extensive proceedings prior to and immedi- ately after pleas’ entry.
Following argument, oral the PCHA court awarded relief *12 favor, Flanagan’s authorizing the withdrawal of guilty pleas. rejected The court the Commonwealth’s contention Flanagan’s barred, that petition amended was time as it did rather, not original process, constitute but represented a valid amendment to already-filed, an timely petition. Substantively, 17, 4. The 1995 amendments to the PCRA were enacted on November 1995, days and became promul- effective 60 after the were amendments gated. provided petitioner judgment The amendments that a whose became final before the effective date of the amendments would be timely petition only deemed to have filed a under if Act petitioner’s petition year first was filed within one of the amendments' 3(1) 1), effective (Spec. date. See Section of the Act Sess. No. Nov. P.L. No. 32. ineffectiveness Flanagan’s that concluded court the PCHA not merit, colloquy did plea as the of arguable claim was crimes, thus involved factual basis a sufficient provide In the PCHA particular, unknowing. rendering pleas explained the elements that, plea court found while it charged, never Flanagan had been with which of the crimes Mr. having murdered admitted Flanagan established the elements Redman, attempt it to relate nor did facts, essential particularly which was to the admitted offenses prior exculpatory explanation had offered Flanagan since noted at the court further The entry pleas. of much was unaware Flanagan his pleas, time that he entered evidence, and, in Yacob’s particular, of the Commonwealth’s of murder. account revised testimony counsel’s addition, court found
In the PCHA that counsel’s things, other observing, among unpersuasive, reject- court specifically at best. The murky recollection inculpated had Flanagan testimony counsel’s ed Redman, it since found attack on Mr. personally himself indicate, Flanagan would so in the record that nothing under oath at the decertifi- contrary to the previously testified concluded that the court hearing. regard, In this cation since, facts, if they were accurately recall the counsel did indicated, knowingly permitted Flanagan he would have as he addition, hearing. In himself at the decertification perjure that he believed counsel’s contention court found the PCHA to avoid plead guilty best interests Flanagan’s that it was flawed, possibil- faced the same penalty the death pleading guilty sentence after receiving death ity entry plea. to the of his prior he did court concluded: The PCHA disingenuous it that would be suggests concepts of constitutional to the fundamental contrary “hyper- for a standards apply
law is no greater our that there fashion.” It is belief technical laws of state and adherence to the for technical need constitutionally forego one’s than when a decision country As stated the United is at stake. guaranteed rights *13 602 Alabama, Boykin[ Supreme
States Court 395 U.S. (1969)], 274 at S.Ct. L.Ed.2d “What is stake for facing imprisonment an accused death or demands capable canvassing utmost solicitude which courts are the matter with the accused to make has a full sure he of what and of its understanding connoted conse- quence.” Assuring that a defendant has the information to make an necessary intelligent informed decision on plead required how to is the minimum constitution not, insists, and is perverted appli- the Commonwealth cation of the law.
(citations omitted). Superior Court affirmed in a opinion, memorandum reasoning similar the PCHA court’s. It emphasized, particular, the Commonwealth authority lacked its assertion that evidence adduced at a degree-of-guilt hearing could cure a preceding, inadequate guilty plea colloquy. The Superior Court its finding prejudice summarized as follows: judge
The trial
did not
Flanagan’s open
have
admission of
crime,
the facts and actions which constituted the
understanding
therefore no clear
as to what
pleading
he was
(sic).
guilty
There is no indication in the record that
any time was aware that he would be accused
victim;
to kill
conspiring
that he would
be accused
victim;
stabbing
bludgeoning
or that he would ever
touching
be accused of even
the victim. The record as
established
the PCHA court
indicates that Flanagan
apparently felt that he was
as an
accomplice, and
always
victim,
maintained
he never touched the
victim,
only agree to beat
to kill
never
him.
Presently,
judicial
the Commonwealth maintains that
review
of Flanagan’s
petition
amended
is time barred. On the mer-
its, the
argues
Superior
Court and
erroneously
the PCHA court
reviewed the record
determine
a factual
whether
basis existed at the
time
conviction; however,
support
first-degree
open
murder
only
murder
is tantamount
to an
admission
third-
Commonwealth,
Thus,
it
according to the
murder.5
degree
*14
for
a factual basis
that the record reflects
only
need
establish
murder,
a
intent
require
specific
which does not
third-degree
rather,
kill,
culpability concep-
to the broader
but
attaches
In this
malice,
court.
explained by
plea
tion of
as was
the
that
it would be ab-
emphasizes
the Commonwealth
regard,
to murder
entering
open plea
a defendant
require
surd
kill, as
intent to
the defendant
having
specific
to admit to
regard
in this
at
proofs
to its
put
will
the Commonwealth
that
contends
hearing. The Commonwealth
degree-of-guilt
immediately
and
after
proceedings
before
the record
for third-
predicate
establishes
plea hearing amply
murder—malice;
Flanagan was
aware
well
degree
him and the character of the Commonwealth’s
charges against
evidence;6
plea
guilty plea colloquy
and the
between
thorough
comprehensive.
was otherwise
and
Flanagan
and
Indeed,
that the evidence consid-
the Commonwealth stresses
Flanagan
that
totality overwhelmingly
in the
established
ered
brutal,
rob-
jointly
premeditated
Yacob
committed
based,
prejudices.
bery/murder
large part,
personal
Pennsylvania,
ability
Parenthetically,
the defendant retains the
5.
degree-of-guilt hearing
mitigate
presumption at the
rebut this
voluntary manslaughter.
generally
offense to
See
Commonwealth
Mitchell,
(1991);
Myers,
Pa.
nal Law 714 As the PCHA court emphasized, with also compliance appellate the rule facilitates review and 244, judicial 89 Boykin, conserves resources. See 395 U.S. at (“When at 1712-13 the judge discharges [his] S.Ct. function a for plea colloquy], adequate any [at he leaves record sought, may spin-off review be later forestalls the proceedings probe murky collateral that seek to memories.” (citations omitted)); Dilbeck, v. footnotes Commonwealth (1976). 543, 547, 824, 466 generally Pa. 353 A.2d 827 See Guilty § A.B.A. 14- Justice, Pleas of Standards Criminal 1.6(a) (2d 1986). 1980 Supp. ed. &
Although
strong preference
Court has stressed its
for a
dialogue
colloquies
meaningful participation by
with
manner,
is no
throughout,
defendant
there
set
and no fixed
terms,
See,
which factual basis
by
e.g.,
must be adduced.
Nelson,
461, 464,
228,
v.
455 Pa.
Commonwealth
317 A.2d
229
(1974)
basis,
as a
(cognizing,
sufficient
an on-the-record
factual
summary of the
Commonwealth’s evidence
the district
attorney,
acceptance
followed the
court’s
Moreover,
plea).
while the Court has admonished that a
six,
into
complete
inquire
mandatory
failure
one
reversal, see,
subjects generally requires
e.g., Commonwealth
626, 634,
497,
(1978); Willis,
v. Chumley, 482 Pa.
394 A.2d
501
52,
1190;
607 of lack of claim beyond a mere go must guilty plea crimes.”). of the legal of the elements technical recitation of a number amplify and the dissent The Commonwealth failing in court’s error pleas the common why reasons valid isolation, might in plea, for the viewed factual basis adduce the However, plea. of Flanagan’s invalidation require circumstances, it is of totality of the consideration upon affording in court did not err pleas common that the apparent it. sustaining not err relief, Court did just Superior as the noted, legal principles in explaining As court liability, of criminal his acceptance governing controlling law statement materially erroneous made rise accomplice gives status as an that a defendant’s the effect principal. for liability “any crimes” to vicarious criminal however, the to this plea-affirmation, In contrast substantial 306(d) is Section accomplice prescribed of an culpability Code, as follows: the Crimes
(d) Culpability accomplice.—When causing particular offense, in the accomplice an is an an result element in the commis- accomplice such result is an causing conduct offense, culpability, with the kind he acts sion of that if if is that result respect with any, sufficient for commission offense. 306(d) added); see also 18 Pa.C.S. (emphasis §
18 Pa.C.S.
to his intent
in rela-
accomplice according
§
(defining
charged
accomplice).9
is
as an
crime with which he
tion
Thus,
must act with
accomplice, person
as an
to be convicted
rea,
of third-
example,
for
the case
mens
requisite
See,
murder,
e.g.,
malice.
with
degree
denied,
(Pa.Super.), appeal
818 A.2d
550-51
Gooding,
(2003).10
failed to
This has entry Court maintained that the of a that plea unknowing, is in the sense the defendant lacks a basic understanding legal principles crimi giving rise responsibility injustice nal is is a accepting, he manifest See, grounds post-conviction for e.g., relief. Common Gunter, 79, 84, 767, (2001) wealth v. 565 Pa. 771 A.2d 771 (plurality, but with all that a agreeing Justices manifest injustice is in established circumstances in which a is unknowing).12 The standard for post-sentence withdrawal guilty pleas dovetails arguable with the re merit/prejudice quirements for relief on a claim of based ineffective assistance counsel, Kimball, of plea see generally Commonwealth v. 555 299, 312, 326, (1999), Pa. 724 A.2d 333 under defendant must show that counsel’s deficient stewardship re- person accomplice merely by being A does not present become an at knowing the scene or accomplice, about a crime. He is an if with the crime, promoting facilitating intent or the commission of that solicits, commands, encourages, requests person or the other aids, aid, agrees commit it or attempts person or to aid the other in planning committing or it. added).
Gooding, (emphasis 818 A.2d at 550 Washington extensively 11. The courts have dealt with this of error sort See, Roberts, jury in the context of e.g., defective instructions. State v. 471, 713, (2000) (stating 142 knowledge by Wash.2d 14 P.3d 736 accomplice principal that the intends to commit ‘a crime’ does not follow); impose liability any strict for and all offenses that State v. 43336-9-1, 1023, 1743098, DeGruy, Wash.App. No. 116 2003 WL *2at 31, 2003) (memorandum) (The (Wash.Ct.App. March error in [the accomplice requires defendant's] instruction reversal when ‘evidence of uncharged jury, argues an crime is before the and the State that the participation triggered liability defendant's in crime specific for the (citations omitted)). charged.' crime Indeed, 12. at the time plea, vigorously entered his the Court See, applied per regard. e.g., Kulp, se rule in this Commonwealth v. 358, 363, 1209, (1978) remand, (refusing 476 Pa. 382 A.2d 1212 following finding materially of a colloquy, hearing defective for a knowledge on the state of the stating: pleas defendant’s actual For Ingram, entered after our decision in there can be no excuse for a hearing recognize adequate court to have failed to the need of an on- waiver, colloquy reflecting knowledgeable intelligent the-record (emphasis original)).
609
by facilitating entry
for
injustice,
example,
in a
suited
manifest
See,
unintelligent plea.
e.g.,
or
unknowing, involuntary,
of an
Allen,
144,
(“Allegations
of ineffec-
Pa. at
732 A.2d
587
557
guilty plea
of a
will serve
entry
with the
connection
tiveness
appellant
if the ineffectiveness caused
only
a basis for relief
Commonwealth
unknowing plea.”);
or
involuntary
to enter
555,
92,
(1989);
also
Frometa,
552,
555
93
see
520
A.2d
v.
Pa.
555, 567,
Flood,
A.2d
627
Pa.Super.
(1993).
requirement
In
other
terms
basis,
ineffectiveness,
see
lack of reasonable
based
relief
Kimball,
there
no reason
724 A.2d at
Pa. at
justify
of which
counsel’s
that we can conceive
would
under
defective
review
patently
acquiescence
*19
Moreover,
made
express
the PCHA court
this case.
for
rejecting plea
proffered
counsel’s
excuse
credibility finding
colloquy.
on an
insisting
adequate
Indeed,
hypothesize
it is
a more concrete exam-
difficult
colloquy,
correspondingly legally
facially
of a
ple
defective
in which the
plea
than a circumstance
unknowing plea,
a materially
to affirm
erroneous under-
causes the defendant
establishing
liability
law
criminal
standing of the substantive
Accord
The dissent apparently materially of a erroneous un- gan’s on-the-record affirmation law as distinct from the derstanding entirely applicable deficiency, namely, other substantial absence plea’s basis for plea, of the factual irrelevant discussion Thus, assessment. the dissent would totality the essential issue to consideration remand relegate former differ, however, PCHA court. We with this for approach, several reasons.
First,
noted,
previously
a totality assessment of the
knowing, voluntary,
intelligent
of a plea
character
cannot
fairly
be
undertaken without
accounting
court’s
explanation of the relevant
law. The
apparently
dissent
ac-
knowledges the United
Supreme
States
Court’s admonition
that, for a
defendant
understand the
him
charges against
must
facts,
have an
understanding
the law relation to the
Boykin,
see
at 243
U.S.
n.
Second, the close interrelationship between the two material defects under apparent review is on the face of the record. The both concerning accomplice liability and facts case, attendant was central to this in particular, (and defendant, Yacob, because another participated indeed to) crimes, had pled guilty claimed on the (at record a decertification hearing) to have been absent during the actual killing and described his in a intent manner that facially implicate Indeed, could culpable lesser state.13 from the outset the colloquy, court stressed the centrality accomplice liability theory to Flanagan’s accep- liability, tance criminal as follows: THE COURT: So in to begin order and in view the fact that both you and Mr. Yacob jointly are involved or at least *20 jointly charged crimes, with these various let begin by me explaining you the law of accomplice, because will here, sort of things think, tie I together and make it easier record, note, however, 13. On review of the we if that even a fact-finder facts, accept Flanagan's were to most favorable version of the it would was, nevertheless be free to find that he acted with malice and therefore minimum, Moreover, accomplice third-degree at a murder. plea degree-of-guilt court hearing, Flanagan conducted a at which first-degree beyond found of murder a reasonable doubt. These observations, however, plea explana- do not cure the court's defective accomplice liability, jury tion of rely Flanagan’s as a could also most degree favorable version to infer culpability; Flanagan a lesser of right jury waived having to a trial affirmed on the record a materially law; erroneous inquiry statement relevant and the rele- validity vant plea knowing to the of the voluntary centers on its character.
611 about. you charges came how these for to understand Okay? Yes, sir.
[FLANAGAN]: precisely exists Third, requirement factual basis is not to an offense that plea a mistaken against protect generally conduct. See implicated by the defendant’s actually 714; § A.B.A. Standards 21 Law Am.Jur.2d Criminal for 14—1.6(a). Guilty require- § Justice, Pleas Criminal material ment, therefore, any to counterbalance designed defendant, of the part of the law on the misunderstanding case, as a result is, in a matter of record present which liability.14 explanation accomplice court’s defective Fourth, explanation if the court’s defective even totality not subsumed within the assess controlling law were ment, judgment a valid or ability this has the to affirm Court is good as of There appearing order for reason record.15 here, authority since the decision invoking cause for such facial error colloquy a case in which the is marred remand of plea- in terms apparent dispositive so from the record and judicial res invalidity represents an inefficient utilization ources.16 totality that a of the
We therefore hold review was of an Flanagan’s plea circumstances establishes and, reason, for this will not disturb the unknowing character Superior Court and PCHA court. On disposition precisely references the on these terms in his brief. 14. matter Appellee (noting Brief of at 18 court’s deficient See accomplice liability impact concerns exacerbated the of its basis). failure to adduce a factual 425, Katze, 416, generally v. Pa. 658 A.2d 15. See 540 345, (1995) (opinion grounds); Borough divided on other McAdoo Commonwealth, Bd., 422, 5, n. Pa. Labor Relations 506 Pa. 428-29 Prods., 761, (1984); & Co. v. Iceland 485 A.2d 764 n. 5 EJ. McAleer Inc., 4, 441, (1977); n. 443 n. 4 Hader v. 475 Pa. 381 A.2d Co., 139, 145-46, Coplay Mfg. 189 A.2d 274-75 Cement Pa. 110, 115, (1963); Elgart, 383 117 A.2d 901-02 Sherwood v. Pa. (1955). case, languished systemic problem 16. The manifested decade, go approximately the PCHA also does not without notice. *21 612 note, expectation compliance our with
closing we reinforce six, relatively requirements and modest straightforward See colloquy. valid guilty plea that the baseline for a set (comment). Pa.R.Crim.P. affirmed, Court’s order is and the matter Superior
The for trial. remanded in dissenting opinion which Chief
Justice CASTILLE files join. EAKIN Justice CAPPY Justice dissenting. Justice CASTILLE to consider granted discretionary This Court review (PCHA)1 of Post Act relief to Hearing award Conviction court in this Flanagan. Dennis The PCHA matter appellee first verdict and appellee’s degree permit- overturned murder charges general plea ted him to withdraw his murder, robbery conspiracy. The court concluded guilty plea unknowingly was entered because the appellee’s adequate failed to establish an factual basis for plea colloquy Superior Court affirmed. For the reasons plea. follow, I would reverse. 1, 1981, as follows: on July
The relevant facts are accom- year-old year-old and his nineteen appellee seventeen Yacob, to a George lured James Redman deserted plice, in was park County, industrial Bucks where he robbed later, body was Days decomposing beaten to death. Redman’s industrial park, found hidden a wooded area behind the his in four beyond recognition; beaten skull was fractured broken, had been stabbed at places, larynx he least once. 10, 1981, and Yacob. July police appellee Ap-
On arrested in a and Yacob had taped admitted statement pellee him to a secluded area and “beat planned bring Redman up” they because believed he was homosexual. repealed part, part, and renamed the 1. The PCHA was modified (PCRA), April Appellee Post Conviction Relief Act effective 1988. shortly petition filed his initial PCHA before the 1988 amendment. The upon granted PCHA claim which relief was was added an amended petition years eleven filed later. *22 had “George explained, As Statement, appellee at 2. 7/10/81 before, and he tried up him picked had guy that this told me George had me and George. on So advances making certain guy over and work together gonna get were figured we police told Id. Appellee mind a bit.” his change little bit to do it “would appellee that Redman promised had they and Yacob to secluded appellee if drove with him” Redman industrial to the deserted then drove them Id. Redman area. Redman, hit grabbed Yacob where, according appellee, park Appellee him him. and then kicked him, down knocked just sort up, back “we got that when Redman recalled his ass and gonna beat him we were talking telling and started Id. at 4. this, thing.” that and the other in maintained, however, participate that he did Appellee Yacob killed when present and was not beating, actual Rather, Yacob he claimed body. and hid the Redman front of the car him to take Redman’s instructed that he explained him. Appellee wait for park industrial and later, minutes returned twenty complied, approximately car, Yacob, away Redman’s scene, and drove picked up which, said, without Yacob had taken with Redman’s wallet that, after sev- then recalled knowledge. Appellee appellee’s car, hitchhikers up three they picked with days eral Redman’s Yacob’s initial Jersey. City, to Atlantic New and traveled Ya- with account: appellee’s was consistent taped confession Redman, during never touched appellee cob said that car to leave Redman’s appellee had instructed the attack he Statement, See Yacob until he was done. 7/10/81. murder, degree with first charged Yacob were
Appellee receiving property stolen taking, unlawful robbery, theft penalty the death sought conspiracy. The Commonwealth 5, 1981, pre-trial at a November both defendants. On against juvenile matter to motion to transfer the appellee’s on hearing Garb, Jr., court, Isaac court, the Honorable S. per trial case, including the facts concerning heard evidence subsequent his statement and taped autopsy report, appellee’s changed hearing, appellee At that testimony. in-court had never somewhat, that he testifying account earlier him, planned lure Redman to a secluded to beat but area merely joined Yacob Redman’s car he had because believed that Redman would them with “crank” supply (methamphet- amine). But, cross-examination, on appellee conceded that he originally police had told that he and Yacob had planned find a to attack place secluded Redman. As in his taped statement, attack, appellee recounted they after the car, wallet, left the scene Redman’s with Redman’s and then later drove the stolen Jersey vehicle the New shore with Judge three hitchhikers. Garb appellee’s denied transfer motion. 24, 1981,
At a subsequent hearing November Judge Garb *23 motions, considered pre-trial the co-defendants’ other includ- motion ing appellee’s suppress his earlier statement police.2 Again, the trial court heard evidence related to the facts of the case. The trial court granted the Common- request juvenile wealth’s to incorporate the transfer hearing into transcript hearing the record. also Appellee testified a time, Redman, second insisting again that Yacob had attacked merely while he had watched until was he instructed to take car “go Redman’s and wait for [Yacob] somewhere.” The testimony also heard the of police several officers who had arrested and appellee Yacob. Lieutenant Robert Eckert that, arrest, prior police testified to the had interviewed witnesses, several including McGlinchey. Andrea Lieutenant Eckert said that Ms. McGlinchey had told that Yacob police pointed had to Redman’s car and boasted to her and a friend “just that he and appellee had beat up guy get that.” that, Lieutenant Eckert further testified after appellee and Yacob station, were arrested and en police route volunteered, appellee “You know guy fag, was don’t you?” 1, 1981,
On December appellee guilty entered a of Redman, general homicide for the murder of and the related of charges robbery, by theft unlawful taking, receiving stolen property and criminal conspiracy. Judge Garb conducted a granted. 2. A motion to sever the of trials the co-defendants was All other motions were denied. explained he counsel present, with plea colloquy, in- homicide general and that accomplice liability theory murder degree and third degree second degree, cludes “first Judge Garb manslaughter.” involuntary and voluntary and offenses, as of these the elements each discussed thoroughly taking, theft unlawful robbery, offenses well as the conspiracy—and criminal and receiving property stolen Judge Garb imposed could be under each. sentences that to a trial which right that he had the appellee informed then and that proof, would the burden Commonwealth bear Further, in- Judge Garb plead guilty. he did not have plea, presumption of his result appellee formed degree, of the third guilty that he was murder would be at the proof would the burden of that the bear hearing. Throughout colloquy, degree-of-guilt subsequent charges understood the stated he appellee repeatedly When the entering general plea. consequences confirmed appellee verbally colloquy complete, voluntarily, entering guilty plea knowingly that was nor his accepted guilty plea. appellee Neither Judge Garb objected any way. that the was deficient counsel guilt hearing immediately followed degree additional plea hearing. There the Commonwealth introduced case, including the facts of the extensive concerning evidence witnesses, including appellee’s crime-scene evidence and new *24 Yacob, this his Yacob. who time had revised accomplice, events, that than a before the version of testified more week murder, [appellee] plan up [Redman] “me and had beat 3 and, if kill him.” possible, Degree his car Guilt take at 186. Yacob described how he and Transcript, 12/2/81 park by promising to the industrial appellee lured Redman sex, on pulled they got and how he had a knife Redman once appellee Yacob that he and then taunted there. testified and forth. Id. Eventu- they passed Redman as the knife back and, him” said, both on beating up Yacob “we started ally, murder, earlier, degree days pleaded guilty Several Yacob to first 3. robbery, receiving property. conspiracy, stolen He received a theft and imprisonment of ten to sentence of life and a concurrent sentence twenty years. when would not stop screaming, appellee Redman stabbed Yacob, According him. Redman continued to moan on the head, ground appellee large against until threw a rock his it was that repeated again. then the deed When clear Red- dead, man together, they dragged Yacob recalled body pile to a wooded area and hid it under a of trash. account. aspects
Other witnesses corroborated Yacob’s For Tom example, year-old McComeskey fourteen testified days that several before the murder he had heard appellee “talking they going and Yacob about how were to beat Also, Frazier, Miriam guy up.” one the hitchhikers who appellee went the shore with and Yacob Redman’s stolen vehicle, car, that about appellee testified when she asked it.” Id. that had replied they guy “killed 93. She that appellee guy further testified claimed that “the was a fag,” bragged that he “did it all” was too because Yacob Id. at 94-95. Likewise, New, afraid. had Gerald who been Prison, appellee County incarcerated with at the Bucks testi- him appellee charged fied that had told that had with he been murder and that he had beaten and stabbed his victim. New said appellee thought further testified actions were justified gay. because his victim was
Upon completion degree guilt hearing on Decem- 3, 1981, ber Garb found of first Judge appellee guilty degree beyond murder a reasonable doubt: Considering the number and blows severity inflicted body this case areas where the blows were administered, head, side, noticeably the face and we are kill. clearly satisfied these facts establish the intent Considering [appellee] many inflicted if not most of the injuries, together serious with his admissions to various so, people that he had done caused us to conclude that he fact formed the to kill which would requisite intent support finding of murder in first degree. Trial at 19. At slip op. penalty phase, Judge Court Garb that sufficient factors mitigating concluded were established Thus, prevent the of the death imposition penalty. Decem- *25 18, 1981, ber was appellee imprisonment sentenced life robbery for the twenty years ten a concurrent sentence motions were filed. timely post-sentence No conviction. counsel, Judge Garb 1982, petition upon In October pro nunc tunc. motions post-verdict to file granted permission was the trial motion post-verdict only The issue raised juvenile Judge court. matter to to transfer the court’s refusal Superior Court motion. The post-verdict Garb denied 1985, 3, allocatur. March this Court denied affirmed and on under the 5, 1988, pro petition filed a se appellee May On (PCHA), Act 19 P.S. Hearing now-repealed Post-Conviction alia, 1180-1, that trial counsel was § et inter seq., alleging, was deficient and therefore “guilty plea ineffective because it.” trial knowingly entered could not have [appellee] County Public Defender’s Office of Bucks appointed court took no action on but counsel represent appellee, for on March request filed a new counsel petition. Appellee time, At that also years appellee 1999—more than ten later.4 to his pending petition, amendment PCHA “suggested” filed which new claims counsel ineffectiveness included several here, error, claim including trial court the relevant which was original “guilty plea his claim expanded upon i.e., in accepting petitioner’s trial court erred deficient”: “the no inasmuch as factual basis was established guilty plea; charged, of the offenses relating admitted acts to the elements unknowing.” 20, 2000, to consider hearing appellee’s after a On June relief, motion” for supplemental post-conviction “motion and grant appointed Rufe new counsel the Honorable John J. original pro supplement to amend or ed leave counsel 14, 2000, appellee filed a counseled se On November petition.5 relief,” collateral support post-conviction “brief claimed, petition se inter upon original pro expanded alia, they were ineffective when failed that “trial counsel delay. explanation in the record of the reasons for this 4. There is no counsel, Miller, Esq., present appointed Randall 5. The PCHA August prior appointed counsel withdrew. after *26 object to a without a factual basis to guilty plea colloquy of claims.”6 any substantiate the 2, 2001, an evidentiary hearing, On March after the PCHA relief, for granted appellee’s petition post-conviction court conviction, and degree permitted overturned first murder guilty plea. him to withdraw his 1981 Concluding appel- appointed initial counsel let his post-conviction lee’s had for petition years PCHA sit idle more than ten without justification, or explanation the PCHA court examined the PCHA, of the than petition merits the under rather the merits, court found that not appellee PCRA. On the the could guilty have entered with a full plea understanding the charges underlying nature of the because the facts the of- at general fenses were adduced the record the time the guilty was entered. The court that this was plea concluded particularly because important appellee repeatedly here actual participating beating: denied Where, case, inas a defendant has offered an exculpato- to it ry explanation prior guilty plea, should alert the judge hearing the to conduct an plea especially diligent examination of the so as to plea defendant assure knowing voluntary. Consequently, and of a the existence law, basis application factual for the assuring voluntary became essential to á and knowing plea. (citation omitted). Thus, PCHA court at 14 slip op. the PCHA court colloquy determined that the was defective as a matter of law for lack of a factual basis and that appellee’s plea/trial failing object counsel were ineffective for Appellee's support post 6. "brief conviction relief” raised the (a) following they issues: whether trial counsel were ineffective when basis; (b) object guilty plea colloquy failed to that the lacked a factual failing object during whether trial counsel were ineffective guilty plea colloquy gave description when the court a defective murder; (c) liability degree accomplice pertains as it to first whether they object trial were ineffective when counsel failed to the court's description co-conspirator liability/criminal conspiracy in relation to degrees permissible the various of murder and the for con- sentences murder; (d) spiracy to commit whether trial counsel were ineffec- they present tive when failed to interview witnesses in an and/or attempt mitigate during appellee’s involvement in the crimes degree guilt hearing. to withdraw the failing petition thereafter. affirmed, agree- Court Superior three-judge panel
A that the conclusion predicate court’s the PCHA ing with forth a to set colloquy failed unknowing because that, although reasoned panel plea. basis for the factual there was accomplice,” as an he was “felt that appellee time was aware that [he] in the record “no indication victim; to kill the conspiring would be accused that he victim; bludgeoning stabbing accused of he would be the victim.” touching of even would ever be accused or that he *27 at 10-11. slip op. Superior Court and this Court further review sought
The Commonwealth alia, inter consider, the PCHA court’s to allocatur granted in a a factual basis the absence of detailed conclusion degree guilt and of guilt a of preceding general plea colloquy constitutionally unsound a plea hearing appellee’s rendered for law, counsel ineffective thereby and rendered matter post- the standard of review is whether object.7 to Our failing by evidence supported determination is conviction court’s following petition issues: raised the Commonwealth’s allocatur 7. The twenty- reversing appellee’s erred in Whether the PCHA court a. imposing degree and in an absurd year-old murder conviction first dispute attempting to facts that he is requirement that he admit to hearing; degree guilt the trial based on an inade- appellee is entitled to a new b. Whether appellee degree when entered quate colloquy to third murder was, fact, guilty penalty found the death and to avoid court; by degree the trial beyond doubt of first murder a reasonable challenge validity guilty of his appellee waived his c. Whether post-conviction granting PCHA court erred in plea and whether the relief; collateral by preponderance plead prove appellee failed to Whether d. presented no relief when he that he was entitled to of the evidence claims; support his evidence to appellee’s jurisdiction to hear PCHA court lacked e. Whether the relief, specifically as to the post-conviction collateral request for untimely granted, as said action was charge for which relief was filed; challenge delay post-conviction collateral f. Whether the re-try ability prejudiced guilty plea has the Commonwealth's requested relief must be denied. appellee such that the encompassed issues. general grant all of these of allocatur Our record and whether it is free of legal error. Commonwealth (1998). v. Jermyn, 551 Pa. 709 A.2d argues analyzing plea, PCHA court failed to apply totality of the circumstances test, which is the correct standard for determining whether a guilty plea knowing, intelligent voluntary. Under this standard, argues the Commonwealth was know- ing, intelligent voluntary because the was colloquy thorough, appellee and because acknowledged that he under- Moreover, stood the him. charges against the Commonwealth avers that court’s the PCHA conclusion that the was failing defective establish a factual basis ignores the crucial fact not simply was but a plea, general plea guilty which was to degree be followed guilt hearing. The evidence which was adduced immediately following which colloquy—and appellee free contest in order to degree determine the of guilt—proved appellee’s willful, deliberate malicious murder of Redman. The Commonwealth also contends that appellee’s claim that trial counsel was for failing object ineffective plea colloquy was untimely (PCRA), under the Post Conviction Relief Act amendments, § and its 42 Pa.C.S.A. 9541 et seq., were during enacted pendency petition.
Appellee counters that the adequate absence factual basis for in colloquy, the trial counsel’s failure to object to the or to colloquy move withdraw the him to plea, led admit unknowingly general guilt his to that crimes he did not that, commit. Specifically, appellee argues in prior proceed- ings, expressly he had having participated denied in actual killing Appellee Redman. now that avers his motivated the fact that he felt guilty try he did not to it, stop beating police or tell about argues but he that he mistakenly believed that this alone was sufficient to render him responsible for the crimes. matter,
As a preliminary we consider the Commonwealth’s contention that appellee’s petition, amended which raised this claim, is untimely under the PCRA. The PCRA timeliness requirements jurisdictional and, are in nature accordingly,
621 petitions. PCRA Commonwealth untimely court cannot hear (2003). 369, also 503, See Rienzi, 827 A.2d 573 Pa. v. (2001) 1232, Hall, 92, 565 Pa. 771 A.2d jurisdiction untimely to entertain lack courts (“Pennsylvania petitions”). PCRA appellee since did raise avers
The Commonwealth failing for was defective of whether the issue se original pro for factual basis establish a PCHA, petition— his 1999 “amended” filed under the petition a new actually for first time—is the issue which raised PCRA, not an amendment subject to the petition the “amended” Because pending petition.8 PCHA original after the PCRA’s one- year more than one petition was filed 1996, effective the Common- limitation became year time untimely. this claim should be dismissed argues that wealth (which PCRA took effect 1995 amendments 1996) filed 16, petitions that all be require indeed January judgment date on which the becomes year within one amend- final, of the effective date year or within one PCHA, however, no included § 9545. The ment. Pa.C.S. court has broad dis- post-conviction A such time restriction. petition post-convic- to amend a for granting leave cretion (“The 905(A) judge tion collateral relief. See Pa.R.Crim.P. for petition post- or withdraw a leave to amend may grant any time. Amendment shall be conviction collateral relief justice.”); substantial allowed to achieve freely Pa.R.Crim.P. sheet, PCHA According appellee did not file an amended docket 8. appoint- simply requested the petition but instead in March of shows, however, appellee did submit The record ment of counsel. 20, 2000, after a "suggested at that time. On June amendments” supplemental appellee’s motion” hearing "motion to consider relief, granted Judge appointed Rufe new counsel and post conviction pro petition. supplement original or se leave for counsel to amend support appellee filed a counseled “brief On November relief,” allegations appellee's post which reframed conviction collateral claims, including the as counsel ineffectiveness of trial court error when [appellee’s] trial counsel were ineffective claim: "Whether instant plea colloquy object without a factual basis they to a failed This is the claim that the lower courts of the claims.” substantiate Thus, actually the Commonwealth is we assume considered. *29 amendments, 1999 referring and not his appellee’s 2000 counseled to pro “suggested se amendments.” 622
905(B) (A shall “judge petition” order amendment when for petition post-conviction originally relief “is defective as filed.”). Moreover, that, this Court has under our determined procedure, petitioner post-conviction rules of criminal 904(D) (“The relief is entitled to counsel. See Pa.R.Crim.P. shall to judge appoint represent counsel defendant whenever it.”); justice the interests of see also require Williams, 613, 981, (2003); 573 Pa. 828 A.2d 990 Common (1980) 126, 65, Sangricco, wealth v. 490 Pa. 415 A.2d 68 (PCHA se pro petitioner legally envisions will have terms). to position acceptable legal trained counsel advance Accordingly, petitioner we have held where a files his se, post petition first conviction relief he shall pro permit be petition ted to file an amended with the assistance counsel. 457, 1167, Tedford, See Commonwealth v. 566 Pa. 781 A.2d (2001); Priovolos, 364, 1170 Commonwealth v. 552 Pa. (1998); 675, Duffey, A.2d 420 Commonwealth v. 551 Pa. (1998). A.2d 63
The PCHA
nor
petition here
neither withdrawn
decided
In
prior
being amended.
accordance with our precedent,
judice granted
the PCHA
sub
leave for
appellee
or
se
supplement”
pro
petition
“amend
with the assistance
Thus,
petition
counsel.
because the counseled
was a per-
amendment to
original
pending pro
petition,
mitted
se
nothing
in the
or
prohibit
PCHA existed
restrict
amendment, it must be viewed as an extension of
existing
pro se
rather than as a
petition,
petition,
new
distinct
PCRA,
subject
intervening
to the
requirements
includ-
ing its
Tedford,
time restriction. See
623 se timely pro petition to counseled amendment petition, deadline).10 one-year after timely, though filed PCHA, must petitioner for relief under the eligible To be in his conviction inter alia: resulting “That the error prove, 1180—3(d) § 19 P.S. has not been waived.” and sentence 4(b) Furthermore, provides: PCHA Section (repealed). act, if: of this an issue is waived purposes For (1) understandingly and failed knowingly petitioner The trial, at the it could been raised before the raise it and have trial, proceeding actually in a corpus habeas appeal, conducted, actually initiated under prior proceeding or in a act; and (2) of ex- prove is unable the existence petitioner The justify his failure to raise the traordinary circumstances issue. 4(c) 1180-4(b) (repealed). Finally, §
19
Section
P.S.
that a
presumption
that “there is
rebuttable
provides
PCHA
knowing
an issue is a
appeal
or
raise
failure
1180-4(c)
§
(repealed).
19 P.S.
Since
understanding failure.”
appeal,
was
on direct
validity
appellee’s plea
cognizable
Greer;
(1974);
v.
646,
see Commomvealth
457 Pa.
Appellee argued before the PCHA
guilty plea
was not waived because ineffective assistance
justifying
circumstance
his fail-
extraordinary
counsel was
validity
appeal.
on direct
challenge
ure
as an extraor-
recognized
Ineffective assistance
counsel
dinary circumstance under the PCHA. See Commonwealth
Wideman,
(1973).
To prevail
453 Pa.
306 A.2d
*31
ineffective, appellee
on a claim that counsel was
must over-
attorney
by showing
of
presumption
competence
come the
(1)
(2)
merit;
that:
his
claim is of
underlying
arguable
did not
particular
pursued by
course of conduct
counsel
have
interests;
his
designed
some reasonable basis
effectuate
(3)
ineffectiveness,
but for
is a reasonable
and
counsel’s
there
probability
challenged proceeding
the outcome
(Michael)
different. Commonwealth v.
would have been
Pierce,
186,
203,
(2001);
567 Pa.
786 A.2d
213
accord Strick-
668,
2052,
687,
466
104
80
Washington,
land v.
U.S.
S.Ct.
(1984).11
Allegations
L.Ed.2d 674
ineffectiveness
connec-
entry
guilty plea
tion with the
of a
will serve as a basis for
only
relief
if
ineffectiveness caused the defendant to enter
Fears,
an
or
v.
unknowing
involuntary plea. Commonwealth
281,
52,
(2003);
575 Pa.
836 A.2d
64
Commonwealth v. Frome-
ta,
92,
552,
(1989);
93
v.
520 Pa.
555 A.2d
Commonwealth
(1978).
Jones,
266, 383
926
477 Pa.
A.2d
guilty plea
guilt
Because a
is an admission of
and waiver
to trial
rights—including
right
of several constitutional
will
consid-
jury
right against
self-incrimination—it
be
recognize
governed by
11. We
that the conduct of trial counsel
is
1981,
existing when the case was tried in
which was before
standards
Strickland was decided and before this Court decided Commonwealth v.
Pierce,
153,
(Charles)
(1987), which
515 Pa.
625 Process voluntary under the Due knowing, intelligent ered “ or relinquishment ‘an intentional if it constitutes only Clause ” v. Boykin right privilege.’ known or of a abandonment 5, 1709, L.Ed.2d 274 Alabama, 238, 89 23 243 n. S.Ct. 395 U.S. 464, Zerbst, 458, 58 S.Ct.
(1969) v. 304 U.S. Johnson (quoting (1938)). knowing, intelligent A 1019, 1461 82 L.Ed. an under- if the defendant had this standard voluntary under him, right against charges nature of the standing of the 395 Boykin, plea. of his See consequences trial and the jury v. 1709; also 243-244, see 89 S.Ct. U.S. at (1981). Further, 1180, 555, 1182 Hines, 437 A.2d 496 Pa. charges understanding has an unless a defendant admission him, intelligent cannot stand as against 637, 13, 645 n. 96 426 U.S. Morgan, v. guilt. Henderson (1976). Finally, for a defendant 2253, 108 49 L.Ed.2d S.Ct. “ him, possess must ‘an against charges understand the ” Boykin, in relation to the facts.’ of the law understanding 5, McCarthy (quoting 89 1709 395 at 243 n. S.Ct. U.S. 418 States, 22 L.Ed.2d 89 S.Ct. U.S. United Henderson, 96 S.Ct. (1969)); also U.S. see re- voluntary unless defendant knowing cannot be (plea charge against true nature “real notice ceived him, recognized requirement universally and most the first *32 process.”). due mandated, it constitutionally is not plea colloquy a
Although may court make the constitution- which the trial is a means is guilty plea that a defendant’s determination ally required Maddox, v. 450 voluntary. Commonwealth knowing and truly (1973) 406, 503, McCarthy, 394 U.S. at (citing 300 504 Pa. A.2d Rundle, 1166). ex rel. 465, In Commonwealth West 89 S.Ct. (1968), 102, 196 this Court discussed the 428 Pa. 237 A.2d colloquy trial to conduct a before a court requiring merit accepting guilty plea: a a convictions are obtained after majority
A of criminal insulated from If convictions are to be of these guilty. an on the attack, court is best advised conduct the trial include, of which should examination the defendant record alia, that the defendant satisfy itself attempt inter 626 nature of the to a charges, right jury
understands the trial, the acts sufficient to constitute the offenses for which charged permissible he is and the range sentences. Id. at 197-198. a additional colloquy purpose Such serves the entered, creating complete record the time the reviewing may which a court upon determine whether the Indeed, knowingly voluntarily. was entered our Rules require Criminal Procedure now a trial court to conduct a colloquy the record before accepting guilty plea. See Pa.R.Crim.P. 590.
In
determining
guilty plea
whether
was entered knowingly
however,
voluntarily,
a court “is
free
consider the
Fears,
totality
surrounding
plea.”
the circumstances
Allen,
135,
at 64 (quoting
A.2d
Commonwealth v.
557 Pa.
582,
(1999));
732 A.2d
588-89
see also Commonwealth v.
Schultz,
(1984) (in
188,
1328,
505 Pa.
477 A.2d
determin-
ing
guilty plea
voluntarily,
whether
has been
knowingly
entered,
intelligently
courts look to
totality
circumstances
Martinez,
surrounding plea); Commonwealth v.
499 Pa.
(1982) (same);
In
concluding
guilty plea
judice
sub
was unknow-
ing,
erroneously
the PCHA
relied
upon
Court’s
Hines,
Hines,
decision
496 Pa.
This Court’s decision Ingram, in Commonwealth v. 455 Pa. 316 A.2d espoused (1974), that the help this Court held ensure where to which he charges the nature of the defendant understands court must conduct an on-the-record guilty, is a trial pleading outlined in the comments examination of the defendant as 590(a) 319(a) (now 590(a)). sets forth Rule Rule Pa.R.Crim.P. agreements, governing pleas plea procedure plea] court “shall not unless the accept [a that a trial provides of the defendant judge inquiry determines after understandingly tendered.” Pa.R.Crim.P. voluntarily is 590(a).12 “at a Rule recommend that The comments 590(a) provides Rule as follows: 12. (1) open Pleas shall be taken in court. or, (2) guilty, guilty, may plead not with the consent A defendant plead, judge, contendere. If the defendant refuses nolo guilty judge plea of on the defendant's behalf. shall enter a contendere, (3) judge may accept or nolo refuse inquiry accept judge unless the determines after and shall not it understandingly voluntarily that the tendered. defendant inquiry appear on the record. Such shall 590(a). P. Pa. R.Crim *34 628 judge
minimum” the should ask questions elicit the follow- ing information:
(1) Does the defendant understand the nature of the charges to which or pleading guilty he she is or nolo confedere?
(2) plea? Is there a factual basis for the (3) Does the defendant understand that he or she has the right by to trial jury?
(4) Does the defendant understand that or pre- he she is sumed innocent until guilty? found (5) Is the defendant aware of the permissible range sentences charged? fines the offenses and/or (6) Is the defendant aware that the is not bound judge the terms of any plea agreement tendered unless judge accepts such agreement? added).13
Pa. R.Crim. P. 590 Comments In (emphasis a line of decisions, subsequent this Court Ingram support cited proposition these areas of inquiry “mandatory during are a guilty plea colloquy and the to satisfy failure these minimal will requirements result reversal.” v. Commonwealth Wil lis, 50, 1189, 1190(1977) 471 Pa. 369 A.2d (reversing judgment sentence where record did not inform defen innocence); dant of presumption of see also Commonwealth v. (“Failure 626, 497, (1978) Chumley, 482 Pa. 394 A.2d 501 inquire into defendant’s understanding subjects gen these reversal.”); erally requires Tabb, Commonwealth v. Pa. 477 (1978) (“Absent 115, 849, 383 A.2d 852 such a dialogue record, we cannot conclude was entered volun tarily, intelligently, knowingly, and ... understandingly and a judgment of sentence cannot stand on such a plea.”); Com Morin, 80, (1978) (reversal monwealth v. 477 Pa. 383 A.2d 832 and remand for trial only remedy new of inadequate case Dilbeck, colloquy); 543, Commonwealth v. 466 Pa. 353 A.2d (1976) (same); Schork, 824 Commonwealth v. 467 Pa. 356 language essentially 13. The of the Comment to the current Rule is language quoted Ingram. same as the
629
Minor,
467 Pa.
(1976)(same);
v.
Commonwealth
A.2d
(1976)(same).
A.2d 346
sub
Court
Superior
court and the
But,
PCHA
both the
since
long
this
has
Court
recognize
judice failed
and its
Ingram
suggested
per
approach
se
abandoned
(“The
Schultz,
se
per
approach
at 1330
477 A.2d
See
progeny.
decisions
by subsequent
abrogated
... has
been
Ingram
591;
accord
Pa.
446 A.2d
Court.”);
Shaffer,
(1984);
551,
An
may
claim
be
assistance of counsel
context of an ineffective
Gardner,
499 Pa.
452 A.2d
found
(1982).
Gardner,
only
In
this Court examined
commu-
also off-the-record
colloquy, but
oral and written
to
nications between the defendant
counsel
order
whether, prior
entry
to the
of his
to
determine
murder,
of his right
participate
the defendant was informed
of a
from the
jury
community.
the selection
chosen
record,
had not
so
on the
defendant
been
informed
but
evidentiary hearing
petition,
the PCHA
trial counsel ex-
objected
had not
plained
guilty plea colloquy
because,
prior
colloquy,
he had twice informed the
trial
right
jury
though
defendant of his
to a
even
it was not
trial court on
mentioned
the record. The Court
failing
object
concluded
counsel was not ineffective in
(on
Smith,
also
498 Pa.
colloquy.
See
Cases like Gardner of the contem- objection poraneous requirement and the effect the absence of objection such an has when a is challenge later forwarded as a claim of counsel ineffectiveness. If a colloquy indeed defi- cient, and the client is not point otherwise aware *36 has not been covered it is adequately, upon plea incumbent case, object. Where, as in counsel there was no such objection, the of of question validity plea the the should not be record; rather, trial confined it must also include client, any. counsel’s non-record communications with his if words, In objected other where the has not been to at cured, a may time when the defect be the defect should not as automatically hyper-technical serve basis for collateral relief.
Inquiry guilty into the factual basis for a plea obviously functions. facts it important serves make easier for the of defendant understand the nature the offense to which he addition, pleading guilty. is In inquiry provides the court with a of competency better assessment the defendant’s willingness plead guilty. It also provides adequate more record and thus minimizes the likelihood will be Wayne al., later. See Proce set aside et Criminal LaFave 1999). However, in North Carolina 21.4(f) (2d. dure, § ed. (1970), 27 L.Ed.2d 25, 91 S.Ct. 400 U.S. Alford, and volun knowing that a acknowledged Court Supreme U.S. admit to that the defendant require not plea does tary guilty act: every of trial both a waiver consist of guilty pleas most
[W]hile is not a element the latter guilt, admission express and an penalty. criminal imposition to the requisite constitutional voluntarily, knowingly, may accused crime An individual prison of a imposition to the consent understandingly unable to admit unwilling or if he is even sentence the crime. constituting acts participation unlikely A particularly 160. defendant 91 S.Ct. Id. at the crime constituting act every his participation admit generally, to murder where, here, he enters subsequent at a of murder degree to contest intends the burden will bear the Commonwealth hearing, where to certain to admit Thus, unwillingness a defendant’s proof. conclusion that his lead to the necessarily not acts does matter; and it should lead general unknowing as plea is will be general plea conclusion where to such an automatic hearing. degree guilt by a contested followed surrounding totality of the circumstances light In factual case, was a sufficient it is clear that there in this knowingly and to be deemed general plea for this basis above, trial court heard As detailed voluntarily entered. at two pre-trial facts of the case concerning the evidence The evidence appellee present. at which proceedings taped statements autopsy report included Redman’s recounted taped Yacob’s confession appellee. Yacob and both industrial to the deserted lured Redman appellee how he and taped In appellee’s killed Redman. and how Yacob park, planned Yacob had that he and explained statement him up.” and “beat to a secluded area bring the victim *37 knowl- testimony denied appellee’s subsequent Although victim, in, of, killing the actual participation or edge the victim was with Yacob and admitted that he consistently murder, they at when arrived the scene the and that he left in the scene with Yacob the victim’s vehicle with victim’s the record, wallet. On the basis which suggests least, appellee, very in knowingly aided Yacob crimes, commission of the adequate there was an factual basis appellee’s to conclude that conduct charges fell within the i.e., (with which pleading, he was murder generally presump- tion that it was degree), robbery murder the third conspiracy.14
Further, the evidence adduced at the pre-trial proceedings plea colloquy and the conclusion support appellee well aware the factual basis for charges against him. At outset of colloquy, prosecutor trial informed the appellee agreed to plead guilty murder and to generally, robbery conspiracy, and that appellee and his counsel had “endorsed” the bills information de- Also, scribing charges against him.15 the trial court provides person 14. The Crimes Code that: “A is of an offense if it by is committed his own conduct or person the conduct of another accountable, legally 306(a). § for which he is or both.” 18 Pa.C.S.A. provides person legally The Code further "A that: accountable for the person conduct accomplice of another when he is [ ] of such other offense,” and, person 306(b), § person in commission of the id. "[a] accomplice promoting facilitating is an ... if ... with the intent of or offense, agrees the commission of the attempts he aids or or to aid such it____” 306(c). person planning committing § other or Id. information, “endorsed,” appellee 15. The bills of and his counsel alleged following: Attorney County by The District charges of Bucks this information that, day July County, or about the First said one FLANAGAN, DENNIS (1) did, one, FIRST intentionally DEGREE MURDER kill James Redman, (2) did, SECOND DEGREE MURDER cause the death of one James Redman, being engaged perpetration while felony, of a wit, Robbery Attorney County by The District charges of Bucks this information day July County, on or about the First said one FLANAGAN, DENNIS (1) ROBBERY did, theft, committing in the course of bodily injury inflict serious Redman, upon one James (2) ROBBERY *38 been of the evidence that some fact to the referred appellee informed prior proceedings, considered theory together, acted Yacob had he and because plea: to his liability was relevant accomplice under- you Now, to be certain in order THE COURT: certain I to be that mean doing, by you what are stand theft, James one did, committing threaten a course of in the serious fear of immediate intentionally put him in Redman or bodily injury, (3) ROBBERY theft, did, or threaten committing commit a course of in the degree, to felony first or second in the immediately to commit Homicide, wit, Criminal (4) ROBBERY theft, bodily injury upon one committing inflict in the course Redman, in fear of intentionally put James Redman one or James injury, bodily immediate (5) ROBBERY theft, or remove committing physically take course of in the effects, wit, personal and other Oldsmobile 98 property, to a 1977 force, person of James Redman from the (6) DISPOSITION TAKINGOR THEFT BYUNLAWFUL wit, did, Oldsmobile property, to a 1977 unlawfully moveable take Redman, effects, to with intent of one James personal 98 and other thereof, deprive him (7) PROPERTY RECEIVING STOLEN receive, did, property, to dispose of movable intentionally retain or effects, wit, James personal of one and other Oldsmobile 98 a 1977 Redman, that it had knowing stolen or believe that it has been received, stolen, or being retained property not probably been owner, restore it to the disposed of with intent to (8) CONSPIRACY Yacob, did, George to commit unlawful agree conspire and with Murder, wit, acts, Degree to First (9) CONSPIRACY Yacob, did, agree George to commit unlawful conspire with Murder, acts, wit, Degree to Second (10) CONSPIRACY Yacob, did, George commit unlawful agree with to conspire and acts, Robbery, to wit. (11) CONSPIRACY Yacob, did, George to commit unlawful agree with conspire and acts, wit, Taking Disposition, By or Theft Unlawful (12) CONSPIRACY Yacob, did, unlawful George to commit agree with conspire and acts, wit, Receiving Property, Stolen dignity Assembly peace and against and the the Act of all of which is Pennsylvania. Commonwealth of
that you understand the nature of charges these to which you are entering pleas guilty, these you be sure be, understand what the sentences can what can sentences this, imposed be as a result of order to be certain effect, you understand what legal effects are entry of a guilty and understand what you are that is waiving, rights you what are I giving up, going am ask you questions series and give you the opportunity to answer them. I want to satisfy myself that you under- *39 questions stand these and understand the of import what we All talking right? are about. Yes,
MR. FLANAGAN: sir. Now, course, THE understand, COURT: of as you can I presided have over a of proceedings number this involving case, involving charges these against you and the charges Yacob, against George as you and so can I appreciate, well have some familiarity with the facts of these cases. I evidence, course, haven’t heard all the of I but have heard some of it. Do you understand?
MR. FLANAGAN: Yes.
THE COURT: in begin So order to and in view the fact you both and Mr. jointly Yacob are or involved at least jointly charged crimes, with these various let begin by me explaining you of accomplice, the law because that will here, think, sort of things together tie I it make easier you charges understand how these Okay? came out. Yes, MR. FLANAGAN: sir....
Guilty Thus, Plea Transcript, at 3-4. throughout the 12/1/81 pre-trial proceedings plea and the colloquy, appellee was clearly aware that charged he was with crimes from arising his role conspiring with Yacob in the murder of Redman. Appellee’s claim prior to his plea that he did not participate in Redman, the actual beating truth, if accepted as the would not excuse conduct in aiding abetting Yacob commission of the murder and robbery, and thus did not raise questions as to whether the was knowing and voluntary.
To require than presented more was here would be unreal- given istic very general plea nature of guilty. him to Commonwealth’s not commit plea did Appellee’s did, it, as he at the was free to contest of events: he version the Commonwealth hearing. require To degree guilt stage is general plea at the of the case theory outline its here, where, intended to contest the defendant pointless that version. circumstances, not per- we are of these totality
Given the failing petition was ineffective suaded that trial counsel did on the basis withdraw the knowing permit basis sufficient a factual establish record, Indeed, it is reviewing the entire voluntary plea. general factual basis for the adequate clear that there was stages pro- at all appellee present and that into the record. facts were entered ceedings where these con- ignored have the issue Majority asserts we “materially of a on-the-record affirmation cerning appellee’s forwarding law.” In understanding applicable erroneous procedural posture critique, Majority this overlooks below, accept- The sole substantive issue decided appeal. is whether there was an ed for review and briefed here *40 general plea guilt factual basis for the so as inadequate law, unsound as a matter of plea constitutionally render the object. failing counsel ineffective for thereby render of accom- alleging description claim a defective The distinct Majority summarily which the raises and would plice liability, decide, petition, see appellee’s raised amended PCHA was 6, by given but not the court below the supra n. was reached claim. should not sua disposition of the factual basis We now appellee the would have been sponte prejudge question, it pursue upon may free to remand. While seem clear the presentations absence of adversarial the Majority, the defective, which there- point, description the offense unconstitutionally by automatically general plea rendered the ineffective, deficient, such not be might and rendered counsel argued point.16 if the parties actually the conclusion accomplice liability in regard, we note the law on 16. In this e.g., Pennsylvania up until the mid-1990s. See was in a state of flux 636 that a court does not Majority’s suggestion apply
The it sua sponte out to totality “true” assessment unless reaches vastly distinct claims not raised or on appeal decide briefed totality standard. scope overstates the The assessment which a court general specific is the standard reviews the challenge presented. may There be number distinct challenges specific that could be forwarded on a issue. How- ever, is not an invitation for a court to the standard review appeal and reach out to decide all ignore posture may colloquy. issues that arise from a possible other We not upon propriety colloquy should rule below against any possible challenges: simply and all we should arising from that was only decide the issue properly decided below and is before us now. Majority analysis by ignoring appel furthers its flawed his burden to satisfy prove prejudice
lee’s failure under As Supreme recently the U.S. Court held Strickland/Pierce. Benitez, U.S.-, 2333, United States 542 124 159 S.Ct. (U.S.2004), 2004 1300161 L.Ed.2d WL where the burden defendant, may is on demonstrating prejudice he a showing probability withdraw his absent of a reasonable error, would not plea.” “but have entered the Id. at-, at-, S.Ct. L.Ed.2d WL There, at *5. Supreme the U.S. Court reversed the permitting Ninth Circuit’s decision the defendant in a criminal to withdraw his prosecution upon unpre based plea colloquy served claim that the trial court’s was deficient Procedure. See under the Rules of Criminal Federal Fed. 11(C)(3)(b). At issue was standard plain error R.Crim.P. reversing in Fed.R.Crim.P. 52. In Ninth grant Circuit’s relief, High placing Court noted the rationale for a stricter burden of on a defendant proof challenging guilty plea after the fact: *41 Chester, 358, 1242,
Commonwealth v.
557 Pa.
733 A.2d
1253 n. 12
(1999) (Chester II);
634,
Thompson,
v.
674
Commonwealth
543 Pa.
A.2d
217,
(1996);
196,
Huffman,
222-23
Commonwealth v.
536 Pa.
638 A.2d
961,
(1994);
Chester,
578,
962-63
526 Pa.
587 A.2d
Bachert,
398,
(1991) (Chester I);
1384
Commonwealth v.
499 Pa.
(1982).
Benitez, at-, at WL S.Ct. 542 U.S.
at *5. Court Supreme U.S. articulated
The concerns no here. present are less Benitez error context plain for counsel ineffectiveness—reasonable standard prejudice as the same would differ—is the outcome probability at-, Id. S.Ct. Benitez’s standard. plain error from adopted was standard (noting plain prejudice error Benitez, Strickland). such a Moreover, upon insistence seeks salutary when defendant showing particularly is claim of an unpreserved on the basis challenge guilty plea when the claim deficient—especially plea colloquy that the was testify here did Notably, appellee is later. raised decades fact, that, unaware he was hearing and claim at the PCHA plea of general basis—for his legal factual basis—or the actually entered was the reason he much less that that guilt, attacking the Instead, complaint his he confined plea. totality under the conclusion Majority’s record. The circumstances, not have entered the would appellee these And, reverses it rank speculation is speculation. rank proof the burden of of effectiveness and presumption both the under Strickland. required con- this without upsetting
The courts below erred surrounding it. The circumstances sidering totality in In- se per approach suggested upon reliance below that the chal- given gram/Hines misplaced—particularly sounds in counsel ineffectiveness. to the here lenge I dissent. Accordingly, join EAKIN and Justice
Chief Justice CAPPY dissenting opinion.