Commonwealth v. Paige

429 A.2d 1135, 287 Pa. Super. 133, 1981 Pa. Super. LEXIS 2700
Superior Court of Pennsylvania·Decided May 15, 1981·No. 1299·Published·Cited by 22 cases

Opinions

SPAETH, Judge:

This is an appeal from an order denying, without a hearing, appellant’s Post Conviction Hearing Act petition. Appellant pleaded guilty to robbery, burglary, aggravated assault, possession of an instrument of crime, conspiracy, forgery, and credit card violations. Appellant’s counsel at the guilty plea proceeding never filed a motion to withdraw the pleas, nor did he perfect an appeal. With the assistance of new counsel, appellant filed a petition under the Post Conviction Hearing Act, alleging that his guilty plea counsel was ineffective in not filing a motion to withdraw the pleas, despite appellant’s request that he do so, and that his pleas were not voluntary because counsel induced him to plead by assuring him that he would receive only a probationary sentence and an order requiring him to submit to an in-treatment drug program. We have concluded that the sentence for aggravated assault must be vacated because the record discloses that appellant, in fact, never pleaded guilty to that charge. We have further concluded that an evidentiary hearing should be conducted to determine whether appellant’s guilty plea counsel was ineffective.

-1-

The guilty plea hearing was held on April 25, 1978. The Commonwealth’s witness Filen Kloures testified that appellant struck her husband with a gun during the course of a burglary. N.T. April 25,1978 at 22. This testimony provided the factual basis for appellant’s pleas of guilty to the charges of robbery and aggravated assault. Appellant, however, denied that he ever struck the victim with a gun. The issue that we must decide is whether this denial affected appellant’s pleas.

[137] -a-

The charge of robbery was in two counts. The first count alleged that in the course of committing a theft, appellant inflicted serious bodily injury on the victim; the second count alleged that in the course of committing a theft, appellant threatened the victim with, or intentionally put him in fear of, immediate serious bodily injury.

Appellant was first questioned about the first count, as follows:

BY MS. HAGARTY [assistant district attorney]:
Q. Mr. Paige, you are charged first of all in this case with robbery. Robbery is when somebody in the course of committing a theft inflicts serious bodily injury upon another person or puts that person in fear of serious bodily injury or threatens to commit a felony of the first or second degree or inflicts bodily injury.
Do you understand that?
A. Yes.
Q. In this case the Commonwealth alleges that in fact on November 2, 1977 while committing a theft in the home of Mr. and Mrs. Kloures in Ambler, you did inflict serious bodily injury upon Charles Kloures by hitting him over the head with a gun.
Do you understand that you are entering a plea of guilty to that charge?
A. I don’t remember that. I don’t know nothing about no gun. I don’t remember that.
Q. You don’t remember hitting anybody over the head with a gun?
A. No.
Q. Do you understand that your plea of guilt is that you are admitting that?
A. I am not pleading about no gun.
N.T. April 25, 1978 at 44-45.

[138] When it thus became apparent that appellant would not plead guilty to the first count, in that he would not admit that in the course of committing a theft, he had inflicted serious bodily injury on the victim, the assistant district attorney proceeded to question appellant about the second count, as follows:

Q. Let me ask you another question. The Commonwealth also charges that you intentionally put in fear of immediate bodily injury Mr. Kloures.
Do you understand by pleading guilty you are admitting that?
A. Yes.
Q. And that would be the second count in this case and although you are not willing to plead guilty to the first count, the Commonwealth will not press that, you are pleading guilty then to the second count, threatening him.
Id. at 45-46.

At this point, the lower court interjected, stating: “He is pleading guilty to it all. I can decide what he is pleading guilty to if I accept it.” Id. at 46. With this, the colloquy concerning the charge of robbery concluded.

It is not apparent what the lower court meant by its interjection. It is nevertheless clear enough that as to the charge of robbery, appellant’s denial that he struck the victim with a gun was immaterial. Although the denial precluded a plea of guilty to the first count of the charge of robbery, it did not preclude a plea of guilty to the second count, for even if appellant did not strike the victim with a gun, he nevertheless was guilty of robbery if he intended to put the victim in fear of immediate serious bodily injury,1 as [139] alleged in the second count, to which appellant pleaded guilty.

-b-

The same may not be said of the effect of appellant’s denial as regards his plea of guilty to the charge of aggravated assault. On this charge, the only colloquy was as follows:

Q. You are charged with aggravated assault. Aggravated assault is where one attempts to or does cause serious bodily injury to another or by physical menace puts that person in fear of imminent serious injury. Do you understand that?
A. Yes.
Id. at 48.

This colloquy was inadequate for several reasons.

First, appellant was never asked whether he pleaded guilty to the charge. Asking whether he understood the charge was not equivalent to asking whether he pleaded guilty to the charge.

Second, the definition of the charge was inaccurate. Aggravated assault is defined by the Crimes Code as follows:

[140] (a) Offense denied.—A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
(2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to a police officer making or attempting to make a lawful arrest;
(3) attempts to cause or intentionally or knowingly causes bodily injury to a police officer making or attempting to make a lawful arrest; or
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.
18 C.P.S.A. § 2702.

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Commonwealth v. Paige, 429 A.2d 1135, 287 Pa. Super. 133, 1981 Pa. Super. LEXIS 2700 (Pa. Ct. App. 1981).

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