Commonwealth v. Walburn

378 A.2d 387, 249 Pa. Super. 460, 1977 Pa. Super. LEXIS 2583

• Court: Superior Court of Pennsylvania
• Decided: October 6, 1977
• Docket: 1582
• Status: Published

Opinions

HOFFMAN, Judge:

Appellant contends that he made an unknowing guilty plea because counsel failed to advise him that he had a meritorious Rule 1100¹ claim which would be vindicated on appeal. More specifically, he argues that his Rule 1100 claim was clearly meritorious and that counsel was ineffective in advising appellant to plead guilty. We affirm, however, because at the time appellant entered his pleas of guilty, appellant’s substantive Rule 1100 claim was not clearly meritorious.²

On March 3,1975, appellant filed a Rule 1100 motion. On March 11, the lower court denied the motion because “[t]he Court feels that we had several complicated questions which were presented and included in the petition to suppress, and the Court believes that substantial justice would not be served by acting upon the issues presented in the petition to suppress without deliberation and research. . . ” Trial commenced on the same day. During trial, appellant and his attorney began discussions with the district attorney concerning the possibility of a plea bargain. Apparently, appellant believed that he would be sentenced to as much as 15 years if he were found guilty, and his attorney hoped to bargain for a term of 2 to 4 years’ imprisonment. After appellant changed his plea, the lower court sentenced him to a term of imprisonment of three to seven years for possession of a controlled substance with intent to manufacture or deliver. The lower court conducted an extensive colloquy.

Appellant then filed a petition pursuant to the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq.; 19 P.S. § 1180-1 et seq. New counsel was appointed to represent appellant at his September 16, 1975 hearing. The lower court denied the petition on April 6, 1976. This appeal followed.³

Appellant would have us reverse because trial counsel testified at the PCHA hearing that appellant had asked him to file an appeal based on the Commonwealth’s failure to try appellant within 180 days, but that counsel had felt that an appeal based on the 180 day rule would be unsuccessful because of Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). No other explanation was given by trial counsel for his failure to pursue the Rule 1100 issue. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Appellant further concludes that counsel’s explanation was inadequate. The linchpin of the argument is that the Rule 1100 violation was obviously meritorious and, therefore, counsel had no excuse not to pursue the motion.

However, appellant’s plea was made on March 11, 1975. At that time, Pennsylvania appellate courts had not yet decided whether time consumed by pretrial litigation could be automatically excluded pursuant to Rule 1100(d). We did not decide that issue until March 29, 1976. Commonwealth v. Millhouse, 239 Pa.Super. 445, 362 A.2d 398 (1976), rev’d on other, grounds, 470 Pa. 512, 368 A.2d 1273 (1977). Therefore, when appellant entered his plea, the alternatives confronting appellant and counsel were these: to chance a trial verdict and a severe sentence and take a chance that this Court would reverse the judgment of sentence on a question of first impression or to take a lesser sentence and forego the uncertain route of appellate litigation. Appellant concedes that he and his counsel discussed the existing alternatives he now asserts that the advice was bad. We cannot conclude that the course chosen by counsel was unreasonable in light of the uncertainty of the law in 1975. To hold otherwise would require the use of 20-20 hindsight in order to conclude that the Rule 1100 claim was meritorious. That subsequent analysis may prove trial counsel wrong in his judgment has been consistently disavowed as a standard of appellate review. Commonwealth v. Moore, 466 Pa. 510, 353 A.2d 808 (1976); Commonwealth v. Thomas, 465 Pa. 442, 350 (1976); Commonwealth v. Dennis, 451 Pa. 340, 304 A.2d 111 (1973); Commonwealth v. Gambrell, 450 Pa. 290, 301 A.2d 596 (1973).

We affirm the order of the lower court.

SPAETH, J. concurs in the result. VAN der VOORT, J., files a dissenting opinion in which CERCONE, J., joins.

1 . Rule 1100, Pa.R.Crim.P.; 19 P.S. Appendix.

2 . Appellant also contends that he is entitled to a trial because the plea colloquy was inadequate in two respects: (1) The terms of the plea bargain did not appear of record, Rule 319, Pa.R.Crim.P., 19 P.S. Appendix; (2) the record did not include an explanation of the presumption of innocence. See Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). Initially, although the better practice is to place the terms of the bargain on the record, our Supreme Court has never held that failure to do so leads to a prophylactic grant of a new trial. See Commonwealth v. McNeil, 453 Pa. 102, 305 A.2d 51 (1973); see also, Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Gafni & Shellenberger, Guilty Plea Colloquy in Pennsylvania, 48 Pa.B.Q. 259 (1977). A review of the colloquy and record of the PCHA hearing makes amply clear that the court, counsel and appellant were aware of the terms of the bargain.

We also reject appellant’s second contention. During the PCHA hearing, appellant conceded that he heard the judge explain the presumption of innocence to the jury before trial was terminated by appellant’s guilty plea. In addition, he admitted that he understood what the presumption meant. Although compliance with Rule 319 should be strictly enforced, its application is not intended to protect one who admits, in effect, that his plea was knowingly and intelligently made.

3 . Although appellant filed no direct appeal, he alleged in his PCHA petition that he was denied his right to appeal. During the hearing, appellant entered his correspondence with his attorney that indicates that appellant instructed his attorney to appeal and that counsel declined to do so. The lower court addressed the underlying claims, apparently because it found that the failure to take a direct appeal did not constitute a waiver. See Commonwealth v. Singleton, 248 Pa.Super. 46, 374 A.2d 1309 (1977). Thus, this appeal is properly before us.