*3 Before SPAETH, HESTER and CAVANAUGH, JJ. HESTER, Judge: 11,
On 1977, October appellant Joseph F. Weiss appeared in the Court of Pleas, Common Berks and County, tendered pleas of to three guilty counts of burglary. Pursuant negotiated bargain, he was sentenced to three concurrent prison terms of four each, to ten years at begin expiration of a term appellant was then serving. peti No tion to withdraw the plea filed, 29, 1979, but on January petition instant under the Post Conviction Act1 Hearing was filed challenging plea and alleging ineffective as sistance of counsel. Following an evidentiary hearing on 24, 1979, July at which appellant counsel, acted as his own relief was denied. This appeal followed. 25, January 1966, 1580,
1. Act (19 P.L. No. 554 P.S. 1180-1 § seq.); repealed 6/27/81, et [1397]; effective 42 Pa. C.S.A. 20002 § see Act No. 1980-77. 4 a
Ordinarily
party
appeal
on
who seeks to challenge a
guilty plea must first have filed a motion to withdraw the
plea in the court where it was entered. Commonwealth v.
608,
Dowling,
(1978);
Pa.
Appellant’s attack
his
upon
plea focuses on several
alleged inadequacies in the plea colloquy and counsel’s inef
fectiveness in failing to correct
those shortcomings. Of
course, the lower court must
engage
on the
colloquy
record to ascertain
proffered
whether a
is
intelligent and voluntary. Commonwealth v.
Chumley,
Pa.
Willis,
Commonwealth v.
2. Does the defendant understand the nature of the to pleading guilty? which he is (2) plea? Is there a factual basis the (3) right by Does the defendant understand that he has the to trial jury? (4) presumed Does the defendant understand that he is innocent guilty? until he is found (5) permissible range Is the defendant aware of the of sentences charged? and/or fines for the offenses judge by Is the defendant aware that the is not bound the terms any plea agreement judge accepts of agreement? tendered unless the such Comment to Pa.R.Crim.P. 319.
Appellant adequate first contends that an factual However, basis for his was not established. the record shows that the court first summarized the averments of the issue, burglaries including place, three at time and asked incidents, which he guilt if he admitted in the 3. In v. In replied, “yes”. Colloquy, p. (1974), held the gram, 455 Pa. the Court in the crime as guilt by accused’s admission summarized the a sufficient basis for the court to judge provided factual Thus, the the was not defi accept plea. colloquy instantly cient in this respect.
Next, he was not told the nature of appellant urges However, charges to which he was the pleading guilty. court informed appellant: is not a crime
Burglary taking. Burglary necessarily is established whether there or taking has been a not. Weiss, The essence of burglary ordinary language, Mr. is the unlawful into a and at the time entry property there is an intention to commit an act The crime illegal inside. intention, is with complete and the whether or entry not the inside is successful or not. activity
Do understand you what have said? Honor, Yes, THE DEFENDANT: Your id., 2. p.
The court then outlined some of the defenses which appel Thus, lant assert such may against charges. the record reflects that “the charged elements of the crimes were outlined in Ingram, supra. understandable terms.” That appellant was not advised of all does possible defenses not Stokes, render the invalid. Commonwealth v. 264 Pa. A.2d 204 Super.
Next, appellant ap contends he was not properly of his to a prised right During colloquy, trial. jury statements of the court to this issue were: only relating giving up, “You are if I to trial accept your plea, right id., which is a constitutional jury, right you enjoy.” p. In Commonwealth v.
6
(1973), the Supreme Court delineated the essential ingredi- ents of a trial which are jury necessary to understand the significance of that right:
“ ‘These essential ingredients, basic to the
concept of
trial,
jury
are the requirements that the
be chosen
jury
from members of the
(a
community
jury
peers),
one’s
unanimous,
that the verdict be
and that the accused be
allowed to participate in the selection of the jury panel.”
Lastly, appellant avers that the court did not accu explain the rately possible range of fines for the three burglaries. The record does indeed reflect that appellant told he only $25,000, could be fined possibly when fact the maximum fine for three first degree could be burglaries $75,000. Thus, we with agree appellant that the colloquy was in error as to this area. presence
The of these two deficiencies in the collo quy—invalid waiver of a trial and jury inaccurate statement range fines—does not alone reversal for we require must next determine if counsel was ineffective in failing bring is, course, these defects to the court’s attention. It well settled that counsel will not be deemed ineffective if the course of action chosen had some reasonable basis de signed to effectuate his client’s interest. Commonwealth ex rel. Washington Maroney, A.2d 349 Here, it is clear that counsel believed appellant was receiv ing a favorable in return his very bargain plea. At the testified, from a stand- legal “I felt hearing, counsel PCHA *6 against you. case very strong had a you [appellant] point in that were involved you admitted Additionally, you openly I felt legal perspective ... from a burglary museum So the would you a very strong possibility that there would be confessions, because guilty your be found because I the ... had police which surrendered to you evidence plea that I believe that the and cautioned you you advised in the case you proceed be the best for bargain may way in concurrent sen- . . felonies would be handled . [The] the be no more time for serving tences and .. . would you serving would be already additional felonies than you two accomplished I felt that I had burglary. for the museum So oppor- and giving you able assistance my goal giving you long, projected for . . . rehabilitation rather than a tunity 40 to 60 facing . . . were incarceration period [Y]ou We do not hesitate pp. in these matters.” 37-8. years objecting in not to the collo- finding that counsel’s strategy registered, Had an been objection was reasonable. quy very have been invalidated and could plea may the have there was a much stiffer at trial. Since sentencing faced decision, we do not find his reasonable basis for counsel’s stewardship lacking. moti plea avers that his was
Finally, appellant guilty he on involuntary gave police vated an confession Maute, 22, In v. 263 Pa.Su December Commonwealth 220, 826, (1979), 397 A.2d we said: per. on the it was grounds
In order to attack his guilty
confession, appellant
on an
obtained
unlawfully
based
(1) the confession was in
prove
following:
must
all of the
obtained;
confession was the
(2)
prime
fact
the
unlawfully
motivation of the
the
guilty plea;
guilty
entered on the
advice of counsel. Common
incompetent
(1974);
wealth v.
Butler,
(1973);
Commonwealth v.
Marsh,
v.
Reiland,
Commonwealth v.
In the case, instant it is clear that confession was not “prime motivation” the plea. During the PCHA hearing, counsel testified:
I know asked you [appellant] e., at that point [i. day plea was why you have changed your entered] mind, why have decided you to take a plea bargain, and said you it, because were you involved you were of it and this you felt best to handle way it.
Hearing 7/24/79, p. 38. *7 Appellant offered no testimony rebuttal of this assertion. Hence, the record fully supports the conclusion that appel- lant’s prime motivation to plead he and not guilty, because he had an given allegedly involun- tary confession. Since second requirement Maute, satisfied, is not supra, we need not decide whether remaining two have been met.
Order affirmed.
SPAETH, J., files a concurring opinion.
CAVANAUGH, J., concurs the result.
SPAETH, Judge, concurring: join opinion, because, majority as appears from the opinion, record shows that appellant’s negotiated counsel a favorable bargain, and appellant understood the bar gain and was to satisfied it rather to accept than trial. go In these circumstances counsel’s failure challenge to defective colloquy had reasonable basis designed effec tuate appellant’s interests. Accordingly, counsel was not Newell, ineffective. Commonwealth v. Commonwealth Simpson, Pa.Super. -,