Commonwealth v. Weiss

432 A.2d 1020, 289 Pa. Super. 1, 1981 Pa. Super. LEXIS 3024
CourtSuperior Court of Pennsylvania
DecidedJuly 17, 1981
Docket2636
StatusPublished
Cited by22 cases

This text of 432 A.2d 1020 (Commonwealth v. Weiss) is published on Counsel Stack Legal Research, covering Superior 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. Weiss, 432 A.2d 1020, 289 Pa. Super. 1, 1981 Pa. Super. LEXIS 3024 (Pa. Ct. App. 1981).

Opinions

HESTER, Judge:

On October 11, 1977, appellant Joseph F. Weiss appeared in the Court of Common Pleas, Berks County, and tendered pleas of guilty to three counts of burglary. Pursuant to the negotiated bargain, he was sentenced to three concurrent prison terms of four to ten years each, to begin at the expiration of a term appellant was then serving. No petition to withdraw the plea was filed, but on January 29, 1979, the instant petition under the Post Conviction Hearing Act1 was filed challenging the plea and alleging ineffective assistance of counsel. Following an evidentiary hearing on July 24, 1979, at which appellant acted as his own counsel, relief was denied. This appeal followed.

[4]*4Ordinarily a party on appeal 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. Dowling, 482 Pa. 608, 394 A.2d 488 (1978); Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Pa.R.Crim.P. 319-321. However, where as here, an appellant attacks a plea of guilty on the basis that trial counsel’s ineffectiveness contributed to the plea and where appellant was represented post-trial by the same counsel, we have permitted appellate review of the claim on the merits. Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146, (1980); Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040, (1980); Commonwealth v. Ford, 484 Pa. 163, 398 A.2d 995 (1979); Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979); Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976); Commonwealth v. Miller, 495 Pa. -, 433 A.2d 1 (1981).

Appellant’s attack upon his plea focuses on several alleged inadequacies in the plea colloquy and counsel’s ineffectiveness in failing to correct those shortcomings. Of course, the lower court must engage in a colloquy on the record to ascertain whether a proffered plea of guilty is intelligent and voluntary. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). Inquiry into six separate areas2 is required and failure to inquire into the defendant’s understanding of these subjects generally requires reversal. Chumley, supra, 482 Pa. at 634, 394 A.2d 501.

[5]*5Appellant first contends that an adequate factual basis for his plea was not established. However, the record shows that the court first summarized the averments of the three burglaries at issue, including time and place, and asked appellant if he admitted guilt in the incidents, to which he replied, “yes”. Colloquy, p. 3. In Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), the Court held the accused’s admission of guilt in the crime as summarized by the judge provided a sufficient factual basis for the court to accept the plea. Thus, the colloquy instantly was not deficient in this respect.

Next, appellant urges he was not told the nature of the charges to which he was pleading guilty. However, the court informed appellant:

Burglary is not necessarily a crime of taking. Burglary is established whether there has been a taking or not. The essence of burglary in ordinary language, Mr. Weiss, is the unlawful entry into a property and at the time there is an intention to commit an illegal act inside. The crime is complete with the entry and the intention, whether or not the activity inside is successful or not.
Do you understand what I have said?
THE DEFENDANT: Yes, Your Honor,
id., p. 2.

The court then outlined some of the defenses which appellant may assert against such charges. Thus, the record reflects that “the elements of the crimes charged were outlined in understandable terms.” Ingram, supra. That appellant was not advised of all possible defenses does not render the plea invalid. Commonwealth v. Stokes, 264 Pa.Super. 515, 400 A.2d 204 (1979).

Next, appellant contends he was not properly apprised of his right to a jury trial. During the colloquy, the only statements of the court relating to this issue were: “You are giving up, if I accept your plea, the right to trial by jury, which is a constitutional right you enjoy.” id., p. 3. In Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 [6]*6(1973), the Supreme Court delineated the essential ingredients of a jury trial which are necessary to understand the significance of that right:

“ ‘These essential ingredients, basic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.” Williams, 454 Pa. at 373, 312 A.2d at 600.

If these factors are not explained to the accused, the court cannot assume that the waiver of a jury trial was knowingly and intelligently made. Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978); Commonwealth v. Dello Buono, 271 Pa.Super. 572, 414 A.2d 631 (1979); Commonwealth v. Coxson, 262 Pa.Super. 14, 396 A.2d 460 (1978). Here, it is clear that the colloquy was deficient under Williams standards and that the waiver of a jury trial was not valid.

Lastly, appellant avers that the court did not accurately explain the possible range of fines for the three burglaries. The record does indeed reflect that appellant was only told he could possibly be fined $25,000, when in fact the maximum fine for three first degree burglaries could be $75,000. Thus, we agree with appellant that the colloquy was in error as to this area.

The presence of these two deficiencies in the colloquy—invalid waiver of a jury trial and inaccurate statement of range of fines—does not alone require reversal for we must next determine if counsel was ineffective in failing to bring these defects to the court’s attention. It is, of course, well settled that counsel will not be deemed ineffective if the course of action chosen had some reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Here, it is clear that counsel believed appellant was receiving a very favorable bargain in return for his plea.

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Commonwealth v. Weiss
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Cite This Page — Counsel Stack

Bluebook (online)
432 A.2d 1020, 289 Pa. Super. 1, 1981 Pa. Super. LEXIS 3024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-weiss-pasuperct-1981.