Commonwealth v. Schork
326 A.2d 878
Pa. Super. Ct.
1974
Check Treatment

Opinion by

Yan der Yoort, J.,

In thе above captioned case, the appellant pleaded guilty to various charges; the guilty pleas were entered prior to January 24, 1974. Thе appellant claims that the decision in Commonwealth v. Ingram, 455 Pa. 198, 316 A. 2d 77 (1974) (decided January 24,1974), should be applied to his appeals. In Ingram, as more fully discussed, infra, our Supreme Court dealt with the subject of the аdequacy of colloquies required prior to the acceptance of guilty pleas by our trial courts. In light of the multitude of appeals reaсhing this Court and the *413Supreme Court each year challenging the sufficiency of guilty plea colloquies, it can certainly be expected that many, like the instant appeal, will argue that the holding in Ingram should be applied retroactively. For this reason, we deem it both judicially wise and necessary to examinе this retroactivity issue promptly in order to provide a guide for future appeals. Thus, prior to discussing the claims arising in the instant case, we will discuss the application of Ingram.

In Ingram, the appellant claimed inter alia, that the on-the-record colloquy prior to his guilty plea to murder was deficient under the requirements of Rule 319 (a) of the Pennsylvania Rules of Criminal Procedure.1 The Supreme Court, after a discussion of prior cases2 relating to Rule 319(a) and requirements for valid colloquies held that “. . . the record must disclose that the elements ‍‌‌‌‌​‌​​​‌‌​​​‌​‌‌​‌​​​‌‌​​​‌​​‌​​‌​​‌‌​​‌‌‌‌​‌​‍of the crime or crimes charged were outlined in understandable terms (to the defendant at the time of the plea).” 455 Pa. at 203-204, 310 A. 2d at 80. This explanation of the legal elements of the crime was held nеcessary to assure that the defendant has an understanding of the charge or charges prior to the enti*y of his plea.3

*414It is, as stated supra, the sole issue for resolution in this рart of this opinion whether or not we should retroactively apply the Ingram holding. In the recent case of Commonwealth v. Lockhart, 227 Pa. Superior Ct. 503, 322 A. 2d 707 (1974), this Court dealt with the issue of whether the decision in Commonwealth v. Williams, 454 Pa. 368, 312 A. 2d 597 (1973) should be afforded retroactive application. Williams concerned the “essential elements” of a jury trial with which a defendant must be familiar before a waiver of the right to a jury trial can be accepted. Lockhart is particularly relevant in that it demonstrated the policy considerations which this Court must consider in resolutions such as the instant one and moreover, such policy considerations in Lockhart were those that had been enunciated in guilty plea cases. In Lockhart, we found persuasive the Pennsylvania Supreme Court’s reasoning in Commonwealth v. Godfrey, 434 Pa. 532, 536, 254 A. 2d 923, 925 (1969)4 where it was stated: “(I)t is staggering to the imagination to contemplate the chaos which would result if Bоykin were applied retrospectively. The overwhelming majority of all convictions result from guilty pleas. In a great many of these cases, inadequate ‘on-the-record’ examinations ‍‌‌‌‌​‌​​​‌‌​​​‌​‌‌​‌​​​‌‌​​​‌​​‌​​‌​​‌‌​​‌‌‌‌​‌​‍were conducted. This would mean that countless cases would have to be retried if Boykin were applied retrоactively.” This Court, in the careful review of the huge number of appeals reaching it each year is manifestly cognizant of the high percentage оf criminal litigants who elect to *415plead guilty to criminal charges in the Pennsylvania trial courts each year. In the instant situation, we must likewise recognize that retrospective application of Ingram will result in the mandatory reversal in scores of appeals in such cases. Such a holding would clearly crеate the same havoc in the administration of justice which we found loathsome to contemplate in Lockhart. We also feel that the Ingram holding, further refining the standards for colloquies, no more compelling for retroactive application than the landmark Boykin decision which enunciated the requirement that there be any on-the-record colloquy to demonstrate the voluntariness of a plea. See also Halliday v. United States, 394 U.S. 831 (1969).

There are several other cases of which we take note and find persuasive in the resolution of this issue: Tehan v. Shott, 382 U.S. 406 (1966) held that Griffin v. California, 380 U.S. 609 (1965), which prohibited comment on a defendant’s failure to testify, would be applied prospectively only; Linkletter v. Walker, 381 U.S. 618 (1965) held that the Mapp v. Ohio, 367 U.S. 643 (1961), exclusionary rule would receive no retroactive application; Johnson v. New Jersey, 384 U.S. 719, 728 (1966), which held the rulings ‍‌‌‌‌​‌​​​‌‌​​​‌​‌‌​‌​​​‌‌​​​‌​​‌​​‌​​‌‌​​‌‌‌‌​‌​‍in the landmark cases of Miranda v. Arizona, 384 U.S. 436 (1966) and Escobedo v. Illinois, 378 U.S. 478 (1964) be given prospective application only.

In consideration of all of the above, and in the absence of сompelling reasons or arguments to the contrary we hold that the rule enunciated in Commonwealth v. Ingram should receive prospective application only.

We now must examine the appeal which has raised this issue in the light of thе pre-Ingram standards.

Dennis Schork appeared before the Court of Common Pleas of Philadelphia on September 4, 1973 and pleaded guilty to charges of burglary, larceny and re*416ceiving stolen goods, arising from three incidents occurring in the Spring and Summer of 1972. He was sentenced to concurrent sentences of four to ten years on all three charges. He claims essentially that the lower court did not adequately advise Mm of the nature, definitions and elements of the crimes with which he was charged prior to accepting his guilty pleas.

The record shows the following, inter alia,, in the colloquy at the guilty plea hearing: “Defense counsel: Do you understand you are in сourt and you are charged with four counts of burglary? Defendant: Yes. Defense counsel: Do you understand, also, three of those burglaries occurred in 1972 and one of them is alleged to have occurred in 1978? The one that is alleged to have occurred this year is charged in Bill No. 1552 of July Sessions, 1973. The three burglaries alleged to have occurred in 1972 were Bills 1549, 1550 and 1551 of July Sessions, 1973; do you understand that? Defendant : Yes. . . . Defense counsel: You have indicated to me you are willing tо enter a plea of guilty to certain of the charges here today; is that correct? Defendant: Yes. Defense counsel: I have told you, and will tell you now, in return for your plea of guilty to three of the bills, the bills alleging crimes that occurred in 1972, the District Attorney agreed to move to nol. pros, or discharge the remaining bill, 1552, which alleges a crime which occurred this year; do you understand that? Defendant: Yes. . . . Defense counsel: You understand the charge of burglary cаrries a maxrmnm sentence of 10 to 20 years on each of the individual charges? Defendant: Yes. ... By the Court: I take it you are pleading guilty because you have reviewed the charges against you and the facts as you know them, and you feel you are guilty of these three burglaries? Defendant: Yes.” The above quoted sections of the colloquy are all those which this Court finds could arguably be cited as revealing any explanation of the nature of *417the charges to thе appellant before his guilty pleas. Of course, at ‍‌‌‌‌​‌​​​‌‌​​​‌​‌‌​‌​​​‌‌​​​‌​​‌​​‌​​‌‌​​‌‌‌‌​‌​‍the time of these pleas, an on-the-record colloquy was required. Boykin v. Alabama, supra; Cоmmonwealth v. Godfrey, supra; Commonwealth v. Belgrave, supra.

The record shows that the indictments on which all three pleas were based include charges of burglary, larceny and receiving stolen goods. While larceny and receiving stolen goods were purportedly included among the charges to which the appellant pleaded guilty, the record shows that solely charges of burglary were mentioned in the colloquy. Further, as is readily ascertainable frоm the sections of the colloquy quoted above, the questions and answers of record fall far short of a demonstration that appellant understood the nature оf the factual basis or legal basis of charges against him, even measured by pre-Ingram standards, in effect at the time of this plea. Compare Commonwealth v. Campbell, supra; Commonwealth v. Jackson, supra; Commonweаlth v. Maddox, supra. We are constrained to hold that the guilty pleas in question are invalid and the convictions must be reversed.

Reversed and remanded for new trial.

Notes

That section reads :

“(a) A defendant may plead nоt guilty, guilty, or, with the consent of the court, nolo contendere. The judge may refuse to accept a plea of guilty, and shall not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record.”

Included, inter alia, were: Commonwealth v. Campbell, 451 Pa. 465, 304 A. 2d 121 (1973); Commonwealth v. Jackson, 450 Pa. 417, 299 A. 2d 209 (1973); Commonwealth v. Maddox, 450 Pa. 406, 300 A. 2d 503 (1973); Commonwealth v. Belgrave, 445 Pa. 311, 285 A. 2d 448 (1971); and Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A. 2d 196 (1968).

Commonwealth v. Campbell, supra, and Commonwealth v. Maddox, supra, both dealt with the necеssity that the trial court ‍‌‌‌‌​‌​​​‌‌​​​‌​‌‌​‌​​​‌‌​​​‌​​‌​​‌​​‌‌​​‌‌‌‌​‌​‍examine the defendant’s understanding of the factual basis of the *414crime charged prior to accepting a guilty plea. Ingram, as noted above, deals with an understanding of the legal elements of the crime charged.

In Godfrey, the Court discussed and rejected the retroactive application of Boykin v. Alabama, 395 U.S. 238 (1969). In Boyhm, the United States Supreme Court held that it was error for a trial judge to accept a guilty plea without an on-the-record colloquy showing the plea to be intelligently and voluntarily made.