217 Pa. Super. 288 | Pa. Super. Ct. | 1970
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
Appellants, William Oliver G-reen, David Poteat, Michael Bell, Leroy Barnes, John O. Townsend, Reginald Anderson, Charles Lavender and Richard Clark, appeal from the orders of the Court of Common Pleas of Delaware County dismissing their post-conviction petitions after hearings. Appellants all contend that the guilty pleas upon which their convictions and sentences were based were not knowingly, intelligently and voluntarily entered and that they were denied effective assistance of counsel.
On the afternoon of October 5, 1968, Chester High School played football against Sun Talley High School at Chester High School’s field. During the playing of the National Anthem that preceded the contest, some spectators refused to stand, with at least one of the spectators exhorting others to remain seated. At halftime three spectators were assaulted by a man who was shortly thereafter arrested by the Chester police. In arresting him, policemen had to pass through a group of men who surrounded him and shouted insults at them. Some time after this incident, a number of persons became rowdy and boisterous. Following the game
On January 20,1969, the sixteen accused were tried. See companion case, Commonwealth v. Belgrade, 217 Pa. Superior Ct. 297, 269 A. 2d 317 (1970). The court, over objection, consolidated all matters for trial, refused motions for severance, and declined to grant a nonjury trial unless all defendants agreed. During the trial, after a recess following the Commonwealth’s evidence, the appellants offered guilty pleas which were accepted after individual colloquies. On the indictments common to all the defendants, pleas were entered only for riot, inciting to riot, and conspiracy. Clark additionally entered pleas for assault and battery, and obstructing an officer; Barnes, Lavender and Green for aggravated assault and battery, and malicious mischief to real and personal property.
On January 24, 1969, appellants were sentenced. Each appellant was sentenced to 1½ to 3 years for riot, 1½ to 3 years for inciting to riot, and 1 to 2 year for conspiracy, and each was fined $1100 plus costs. Clark was additionally sentenced to a term of 1 to 2 years with a fine of $100, and Barnes, Anderson and Lavender to terms of 1½ to 3 years with a fine of $500. On all statutory charges the maximum sentence and fine were imposed without variance for any cir
A plea of guilty operates as a waiver of all the constitutional, statutory and judicially created safeguards afforded a defendant in a trial determination of guilt. Commonwealth ex rel. West v. Myers, 423 Pa. 1, 6, 222 A. 2d 918, 921 (1966). “For this waiver [of constitutional rights] to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 459, 464 (1938).” McCarthy v. United States, 394 U.S. 459, 466 (1969). See Kercheval v. United States, 274 U.S. 220, 223-24 (1927). The defendant must know the “nature of the charges . . ., the acts sufficient to constitute the offense for which he is charged and the permissible range of sentences.” Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 106, 237 A. 2d 196, 200 (1968). He must understand the consequences of his plea decision. See Kercheval v. United States, supra; Commonwealth ex rel. Barnosky v. Maroney, 414 Pa. 161, 165, 199 A. 2d 424, 426 (1964).
Our cases have not prescribed a fixed procedure for determining whether defendants understand all the implications of a guilty plea. Commonwealth ex rel. West v. Myers, supra, at 7, 222 A. 2d at 922. For pleas made prior to June 2,1969 (date of decision in Boykin v. Alabama, 395 U.S. 238), a subsequent collateral hearing has been held sufficient to determine the validity of
In the instant case, although the court conducted colloquies, the questions asked were not designed to probe the defendants’ actual understanding of what they were admitting and what the consequences would be.
The handling of these guilty pleas by the court also raises questions in relation to plea bargaining and sentence. Recent cases have attempted to reconcile the practical issues of plea bargaining with constitutional waiver standards. See Commonwealth v. Garrett, 425 Pa. 594, 598, 229 A. 2d 922, 925 (1967); Commonwealth v. Evans, 434 Pa. 52, 252 A. 2d 689 (1969). Evans, in a note, indicates that “a greater degree of certainty that the bargain will be accepted is necessary for the operation of the system.” The procedure recommended for creating such certainty emphasizes open acknowledgment of the bargaining by all concerned, for the protection of the defendant. Counsel, after agreeing upon the concessions desired, should ascertain the court’s willingness to permit them. The court, if it decides that final disposition will not include the concessions contemplated, should so advise the defendant and call for affirmance or withdrawal of the plea. 434 Pa. at 56-57.
Here, we have no explicit evidence beyond the indictments withdrawn of whether a bargain was made, or whether the court ever stated a position on concessions. The court’s only references to sentencing possibilities at the plea hearings were to ask the attorneys whether they had explained the range of possible sentences to their clients. But under circumstances like those of the instant case, a man decides to plead guilty because he is persuaded that it is to his advantage to do so. Unless a procedure like that recommended in Evans is followed, we cannot judge that decision by the logic of contracts between equals. It is unlikely that defense counsel here would have permitted guilty pleas if they had imagined that sentences of from eight
That estimate was in accord with precedent. In the similar case of Commonwealth v. Abney, 195 Pa. Superior Ct. 317, 171 A. 2d 595 (1961), after a football game between the high schools of Norristown and Ridley Township, “a continual series of violent and turbulent acts was perpetrated” by a group of Norristown boys upon the Ridley boys and girls, in which racial differences appeared to play a part. Upon a conviction of participating in a riot, one of the five defendants was committed to Montgomery County Hall, and the other four were sentenced to 2 to 23 months in jail.
In Commonwealth v. Apriceno, 131 Pa. Superior Ct. 158, 198 Atl. 515 (1938), the defendant participated in a strike which became riotous, and lasted several days. On convictions of riot and inciting to riot, she was sentenced to a term of 6 months.
Further, in Apriceno, supra, at pp. 161-2, it was stated that under circumstances where the very acts that constituted riot constituted incitement to riot, the two offenses merged, so that consecutive sentences could not be imposed.
My research has revealed no case in which the total sentence for these two offenses exceeded the maximum of one, even where there was clear evidence of separate incitement activity. In Commonwealth v. Hayes, 205 Pa. Superior Ct. 338, 209 A. 2d 38 (1965), appellant had identified himself as “in charge of an area” in activity that was admitted to be a riot. On conviction, for both offenses, sentence was one term of 1 y2 to 3 years. In Commonwealth v. Merrick, 65 Pa. Superior Ct. 482 (1917), appellant was an instigating leader in a riotous three week long strike that involved
It should also be noted that conspiracy and riot tend to overlap, since the crime of riot requires the element of agreement. (We have held that these offenses do not merge, in Commonwealth v. McSorley, 174 Pa. Superior Ct. 634, 638, 101 A. 2d 919, 921 (1953), because of a distinction which, in my view, we might now reject. See Commonwealth v. Belgrave, supra).
Even if the offenses of riot, inciting to riot, and conspiracy in no way merge, the imposition of consecutive maximum sentences for the acts committed here is an instance of multiplying offenses so as to impose excessive and unfair punishment.
The guilty plea hearings were inadequate to show that the pleas were knowingly and intelligently entered; the burden of proving their validity shifted to the Commonwealth. The Commonwealth’s evidence did not establish appellants’ understanding of the charges against them or of the consequences of pleading. Even assuming that appellants had the burden of proving invalidity, in my judgment that burden was sustained. Appellant’s contentions of lack of understanding were not overcome. Further, the plea hearings were misleading: the court, having in mind the unprecedented maximum sentences that it ultimately imposed four days later, should not have accepted a waiver of the constitutional right to adversary proceedings.
I would reverse the order of the court below, and grant new trials.
Townsend, the only juvenile, was the one exception to the common sentencing, with a sentence of 3 years at Camp Hill. Clark received a suspended sentence for obstructing an officer, as did Barnes, Lavender and Anderson for malicious mischief. At the sentencing hearing the Commonwealth was granted permission to withdraw the additional common indictments, Clark’s additional indictment for assault with intent to maim, and Barnes, Anderson and Lavender’s additional indictments for assault with intent to maim, riotous destruction of property and conspiracy related to the assault.
The record in Oushnie was not silent; it showed an inadequate colloquy. The Court there indicated that but for the nonretroactivity of West there would be a shift of burden. 433 Pa. at 136.
A typical colloquy was the first, with Clark: “District Attorney : May I call to Your Honor’s attention the fact that Mr. Clark is also pleading guilty to matters in case 317 [the assault]. The Court: Yes, that is right. All right, Mr. N. [the attorney]. Have you advised your client? Attorney: Your Honor, I have advised my client of his right to a trial by jury, of his rights to a trial by a judge without a jury, of his rights to appeal, both of the verdict and of the sentence. And my client has indicated to me that he desires to plead guilty. I have also apprised him of ;the possible penalties that each of these charges that he is pleading guilty to carries. He has indicated to me that he wishes to plead guilty. The Court: You have advised him that he has a right to appeal from any sentence imposed by this Court? Attorney : Yes, verdict and sentence. The Court: Did you have any difficulty communicating with him? Does he understand English? Attorney: No sir. I have discussed with him a few days about a possible plea. The Court: Is what your attorney is saying to me what you are really intending to do here, Richard? Clark: Yes. The Court: Do you understand that by answering [entering] this plea of guilty you are admitting that everything the Commonwealth says is true, you are admitting committing these crimes? Clark:
Later colloquies also included the questions whether the defendant was pleading guilty of his own free will and/or whether .any promises or threats had been made to him.
Lead Opinion
Opinion
Orders affirmed.