Commonwealth v. LaSane

389 A.2d 48, 479 Pa. 629, 1978 Pa. LEXIS 759
CourtSupreme Court of Pennsylvania
DecidedJune 14, 1978
Docket538
StatusPublished
Cited by36 cases

This text of 389 A.2d 48 (Commonwealth v. LaSane) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. LaSane, 389 A.2d 48, 479 Pa. 629, 1978 Pa. LEXIS 759 (Pa. 1978).

Opinions

OPINION OF THE COURT

EAGEN, Chief Justice.

On October 2, 1972, Thomas LaSane plead guilty to murder generally in the Court of Common Pleas of Philadelphia and the Commonwealth certified the degree of guilt rose no higher than murder of the second degree. The trial court accepted the plea, found LaSane guilty of murder of the second degree, and imposed a sentence of not less than seven nor more than twenty years imprisonment. No post-verdict [632]*632motions were filed and no appeal from the judgment of sentence was entered. On April 23, 1975, LaSane filed a petition for relief under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp.1977-78) [Hereinafter: PCHA]. Counsel was appointed to assist him. Following a hearing, relief was denied. This appeal is from that order.

LaSane claims the post-conviction hearing court erred in denying relief for the following reasons:

1) his guilty plea was ineffective because the record does not show the plea was knowing, intelligent, and voluntary;
2) he was denied effective assistance of counsel; and,
3) he was denied his constitutional right to a speedy trial.

Additionally, in a “Reply Brief,” LaSane states in pertinent part:

“[the record shows he was] confused and bewildered by the entire guilty plea process [and was p]ressured by his family, inadequately represented by his attorneys, and unclear as to precisely what was taking place, [and thus] did not knowingly and voluntarily enter a guilty plea, [and i]f these arguments are accepted, they clearly demonstrate that LaSane did not knowingly and understanding^ waive his right to appeal from his conviction.”

To be eligible for relief under the PCHA, a petitioner must prove, inter alia:

“That the error resulting in his conviction and sentence has not been . . . waived.”

Section 3(d) of the PCHA, 19 P.S. § 1180-3(d) (Supp.1977-78).

Furthermore, Section 4(b) of the PCHA, 19 P.S. § 1180-4(b) (Supp.1977-78), provides:

“For purposes of this act, an issue is waived if:
“(1) The petitioner knowingly and understanding^ failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
[633]*633“(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.”

Finally, Section 4(c) of the PCHA, 19 P.S. § 1180-4(c) (Supp.1977-78), provides:

“There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.”

Since the validity of LaSane’s plea was cognizable on direct appeal, Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. Hill, 457 Pa. 1, 319 A.2d 886 (1974), the issue was waived and could not be raised in the post-conviction proceeding unless LaSane either rebutted the presumption that the failure to raise the issue on direct appeal was knowing and understanding or alleged and proved the existence of an extraordinary circumstance justifying the failure to raise the issue. LaSane argues the issue of the validity of his plea is not waived because extraordinary circumstances exist to excuse his failure to raise the claim on direct appeal, namely, a deprivation of his appellate rights, see Commonwealth v. Tunnell, 463 Pa. 462, 345 A.2d 611 (1975), and/or ineffective assistance of counsel, see Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973).

Although a deprivation of his appellate rights is now advanced as an extraordinary circumstance, it was not advanced in the post-conviction relief proceedings in the trial court and accordingly we may not now consider it. See Commonwealth v. Moore, 462 Pa. 231, 340 A.2d 447 (1975); Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). Ineffective assistance of counsel was alleged as an extraordinary circumstance justifying the failure to challenge the validity of the plea on direct appeal and has been pursued; thus, we must determine if this allegation has been established as required by Section 4(b)(2) of the PCHA, 19 P.S. § 1180-4(b)(2) (Supp.1977-78), to determine if we should examine the validity of the plea. Furthermore, since La-Sane is represented in these post-conviction proceedings for the first time by counsel other than his counsel at the plea [634]*634proceedings, we will also consider his claim of ineffective counsel, advanced as an independent basis for relief, in his post-conviction hearing petition and here on appeal, as a separate basis for relief. Section 3(c)(6) of the PCHA, 19 P.S. § 1180-3(c)(6) (Supp.1977-78) and Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). LaSane also had the burden of proving ineffectiveness of counsel as an independent basis for relief. Section 3 of the PCHA, 19 P.S. § 1180-3.

To support his argument that counsel was ineffective, LaSane claims: (1) James Owens, co-counsel at the time the plea was entered, did not adequately prepare before advising him to plead guilty1 in that he did not review the “briefs of counsel and the decision of the court on the suppression application to evaluate the chances of having the denial [order] reversed on appeal”;2 and, (2) Owens failed to file a motion to dismiss the charges because of delay between arrest and trial.3

The hearing court “found as a fact that [LaSane’s] trial counsel ably and vigoriously represented him” and concluded “as a matter of law that [LaSane] was not deprived of his constitutional right to representation by competent and effective counsel.”

As to LaSane’s first claim, the background is this:

Initially, Feingold alone represented LaSane. He filed a motion to suppress an incriminatory statement given by LaSane to police, but the motion was denied. Feingold, despite having experience in the criminal-law area, did not consider himself sufficiently knowledgeable to try a homicide case because of his inexperience with that particular type of charge. Moreover, Feingold felt he was too friendly [635]*635with LaSane’s family to properly handle the case. As a result, Owens was appointed as co-counsel for LaSane four days prior to the date set for trial.

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Bluebook (online)
389 A.2d 48, 479 Pa. 629, 1978 Pa. LEXIS 759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-lasane-pa-1978.