Commonwealth v. Hare

380 A.2d 330, 475 Pa. 234, 1977 Pa. LEXIS 883

Opinions

OPINION

PACKEL, Justice.

The appellant contends that his request to withdraw his plea of guilty to murder should have been granted because the plea was induced by the improper conduct of his attorney.

Footnotes

•

* The appellant was accused of murder committed on June 9,1974. He was indicted on July 15,1974. He pled not guilty. His attorney, without success, made a whole series of pre-trial applications for: commitment as a mentally disabled person; suppression of evidence; reduction of bail; change of venue; habeas corpus; and striking the array of jurors.

On March 24, 1975, appellant’s attorney had a conference with the district attorney, who stated that he planned to ask for the death penalty. The attorney discussed this with the appellant and his parents. The appellant was twenty years old, had gone to the ninth grade and was able to read and write. After several discussions in the morning and afternoon of that day, a plea bargain was entered into under which the district attorney would state to the court that the case did not call for the death penalty and the appellant would plead guilty. The district attorney did make the statement to the court and, after an extensive and thorough colloquy, the appellant pled guilty. He was subsequently found to be guilty of murder in the first degree and was sentenced to life imprisonment.

The appellant admittedly pled guilty to avoid the death penalty but claims that the improper counseling of his attorney induced the plea so that it was not made intelligently and willingly. He asserts that “he was stunned, his judgment impaired and his will overborne” by the conduct of his counsel on the day of trial.

Although the criminal procedural rules deal with the withdrawal of the plea of guilty only before trial, Pa.R.Crim.P. 320, the right under appropriate circumstances, even after sentencing, is implicit in the Sixth Amendment of the federal Constitution and in Article I, Section 9, of the Pennsylvania Constitution, under the guarantee of a right to a jury trial. Manifest injustice such as unfair conduct leading to a guilty plea by active inducement, or by inaction when there is a duty to speak, is a valid ground for withdrawal of the plea. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Kelsey v. United States, 484 F.2d 1198 (3d Cir. 1973). Inducement by fear of the death penalty or by the potential use of an invalid confession or other inadmissible evidence, does not give a defendant the right to withdraw a guilty plea unless counsel failed to give effective assistance. Commonwealth v. Melton, 465 Pa. 529, 351 A.2d 221 (1976); Commonwealth ex rel. Henderson v. Maroney, 448 Pa. 411, 293 A.2d 64 (1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 922, 34 L.Ed.2d 701 (1973). In this appeal complaint is made, in the main, not of what trial counsel did, but of what he allegedly failed to do.

In the court below appellant’s post-trial counsel filed a petition to withdraw the plea of guilty on the ground that the “plea of guilty was unlawfully induced by representations of his attorney which were either false or misleading.” After hearing testimony on the petition, the court below refused to allow the withdrawal of the guilty plea, stating:

“In short, we conclude that the guilty plea was not induced by false or misleading representations of counsel but was a knowing and intelligent response to the risk involved.”

In final analysis, the relief sought was based upon a claim of false or misleading representations and, hence, the issues should be reviewed from that standpoint.

Five claims are made. First, is the failure of counsel to discuss the possibility of the death penalty until the day of trial. Second, is the attorney’s statement that unless the appellant pled guilty he would get the death penalty. Both of these points are negatived by an express finding of the court below, supported by the testimony at the hearing to change the plea, that the possibility of the death penalty had received prior discussion and that what counsel said was that the death penalty could be imposed.

Third, is the claim that the death penalty should not have been given consideration on a felony-murder basis because robbery by the appellant took place after the killing. No representation on that issue was made by the attorney. He did say:

“I felt if the Commonwealth supported the opinion that apparently it does have, that the decedent was robbed of forty some dollars or something of that sort, that if the Commonwealth led it’s [sic] case on that, that this crime was committed with that purpose in mind, that there was the very real possibility that that would be considered as an aggravated circumstance and would be sufficient to bring in a death penalty.”

Such a view is not unreasonable in light of Commonwealth v. Butcher, 451 Pa. 359, 304 A.2d 150 (1973), and Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975).

Fourth, is the alleged failure of counsel to advise the appellant that age and maturity are mitigating circumstances which a jury may take into account in deciding whether or not to impose a death sentence. Again there was no misrepresentation on this score. The attorney testified that he did not recall discussing this but that he had given it thought, including the full-grown age and the reasonable education of the defendant. It cannot be said that it is a manifest injustice to warrant a withdrawal of a guilty plea because counsel has not discussed a conceivably possible mitigation factor with respect to the punishment for the crime. This follows, a fortiori, from the defendant’s expressed attitude that, “The only thing I had on my mind was the death sentence and I would have, and I still will, say anything to beat the death sentence.” This is not a case of reliance upon misinformation with respect to the punishment, as was true in Commonwealth v. Wright, 444 Pa. 588, 591, 282 A.2d 266, 267 (1971), where the guilty plea resulted from “erroneous advice received both from his trial counsel and the court.”

Fifth, it is claimed that appellant’s counsel was improperly influenced in recommending the guilty plea because of the inadmissibility of evidence which the court had ruled would be admissible. The evidence was that the appellant had cut off the head and hands of the dead victim and had thrown the torso into a river to avoid identification. It is agreed that this gory story would have a great impact on the jury but it was in fact the gory acts of the appellant to which he had confessed. In any event, there was no incompetence of the lawyer in giving consideration to this pretrial ruling of the judge.

A troublesome factor which does not appear in appellant’s brief but is shown by the record of the hearing on the withdrawal of the guilty plea is the following testimony of appellant’s trial counsel:

“Let me say this, I did not say to him what the Governor’s position was with regard to a death sentence, because there is never any certainty of who the Governor will be at the time the sentence will be imposed. I think that might have been very unfair and very dangerous, as a matter of fact.”

If counsel meant it would be very unfair and very dangerous to inform appellant of this information in that it might induce appellant not to follow counsel’s advice, it might well be that this was a violation of ABA Standards, The Defense Function 5.1(b) (1974): “It is unprofessional conduct for a lawyer intentionally to understate or overstate the risk, hazards or prospects of the case to exert undue influence on the accused’s decision as to his plea.” The quoted statement, however, more likely means that it would be very unfair and very dangerous to rely on this possibility because of the uncertainty as to who the Governor might be at the significant time.

There is no evidence indicative of any probability that the appellant would have refrained from changing his plea if there had been the disclosure of any additional information. Nor has there been any nondisclosure of such a serious nature as would warrant a per se conclusion of inducement. The record and particularly the colloquy at the time of the plea reveal a thorough and conscientious attempt by the court, counsel and the district attorney to make sure that the plea was intelligent and with full understanding.

A plea bargain which has been fully carried out in accordance with its terms should not be set aside in the absence of convincing evidence that the appellant was dealt with indecently or unfairly.

Judgment affirmed.

EAGEN, C. J., and POMEROY, O’BRIEN and NIX, JJ., concur in the result. ROBERTS and MANDERINO, JJ., filed dissenting opinions.

It is also contended that the judgment should be reversed because of the ineffective assistance of trial counsel. Appellate counsel relies solely on the conduct of trial counsel which is hereinafter dealt with.