Commonwealth v. Scott

VAN der VOORT, Judge:

Appellant Raymond C. Scott was arrested on March 25, 1975, charged at No. 105 June Term, 1975, with rape, kidnapping, assault, and conspiracy. Appellant escaped from Butler County Prison on June 25, 1975, but was re-arrested and brought before the court on June 30, 1975. On that date, appellant pleaded guilty to the charges at No. 105 and also, at a separate proceeding, at No. 64 September Term, 1975, to charges of escape, implements of escape, aggravated assault, and theft. Appellant filed a petition on August 8, 1975 for permission to withdraw his pleas, but verbally withdrew the petition in open court on August 15, at which time sentence totaling twelve to twenty-five years imprisonment was imposed.

Appellant took no direct appeal, but on September 28, 1976 filed a PCHA petition alleging an involuntary guilty plea and ineffective assistance of counsel. The lower court denied the petition by Order dated January 6, 1977, without granting a hearing. By Order dated September 27, 1977, our court vacated the lower court’s Order of January 6, and remanded the case to the court below for the appointment of new counsel to assist appellant with his PCHA petition, and for a full evidentiary hearing on the petition. Hearing was held on March 16, 1978, and the petition was dismissed by Order dated April 25, 1978. By Order dated June 27, 1978, our court granted appellant leave to file an appeal nunc pro tunc, which appeal was filed with our court on July 7, 1978.¹

Appellant argues that his guilty pleas were not knowingly, intelligently, and voluntarily entered, since the elements of the crimes charged were not explained on the record at the time appellant entered his pleas. In Commonwealth v. Ingram, 455 Pa. 198, 204, 316 A.2d 77, 80 (1974), our Supreme Court expressly held that:

“However, our finding of a sufficient ‘factual basis’ does not necessarily mean that defendant ‘understood the nature of the charges against him.’ While it is permissible for a defendant to enter a valid guilty plea even if he does not expressly admit every element of the crime, a valid guilty plea may not be accepted in the absence of a demonstration of defendant’s understanding of the charges. Commonwealth v. Campbell, 451 Pa. 465, 304 A.2d 121 (1973).”

In the course of entering his guilty plea in the instant case the defendant filed a “Petition to Enter Plea of Guilty”. His petition is part of the record. In it he stated the following:

(2) I am represented by counsel and the name of my lawyer is Darrell L. Kadunce, Esq.

(3) I have received a copy of the indictment before being called upon to plead, and have read the indictment and discussed it with my attorney and fully understand every charge made against me in this case.

(4) I have told my attorney all the facts and surrounding circumstances as known to me concerning the matters mentioned in the indictment and believe that my attorney is fully informed as to all such matters. My attorney has since informed me and has counselled and advised with me at length as to the nature and cause of each accusation against me as set forth in the indictment and as to any possible defenses I might have in this case.

At the PCHA hearing, appellant’s counsel, Darrell L. Kadunce, testified as follows:

“Q. Okay, Now did you later become aware, after getting all the facts and everything, what charges were against Raymond?

A. Yes, I did.

Q. Did you explain fully to Mr. Scott the different charges, whether in laymen’s language or reading the statute, what he was charged with?

A. Well, I didn’t read the statutes to him specifically, the reason for that being that I seldom do that unless I have a client who is well trained enough or educated enough that I believe he could understand them, but I did go over the elements in laymen’s terms with him as to what he was being accused of.”

From the petition to enter his plea, from the plea proceedings and from the Post Conviction Hearing proceedings it is clear appellant was advised on the record of the elements of the offenses charged to him at No. 105 June Term 1975 and that appellant knowingly, intelligently and voluntarily entered his plea of guilty.

The record provided our court does not contain notes of testimony of the June 30, 1975 proceeding at which appellant pleaded guilty to the charges at No. 64 September Term 1975. We therefore remand the record to the lower court for completion of the record on No. 64, involving the escape, implements of escape, aggravated assault, and theft charges.

Affirmed as to No. 105 June Term 1975. Remanded for completion of the record at No. 64 September Term, 1975.

SPAETH, J., files a concurring and dissenting opinion.

1 . Although appellant failed to take a direct appeal, this case is properly before us at this time. According to testimony of both appellant’s trial counsel and appellant himself at the PCHA hearing, appellant requested that counsel file a direct appeal with our court. Counsel made no effort to assist appellant in perfecting an appeal or in obtaining new counsel, but merely suggested that appellant contact the public defender’s office. There is no indication that counsel attempted to obtain court permission to withdraw his representation. In light of counsel’s ineffectiveness in failing to file an appeal, appellant’s claim of an involuntary guilty plea is not waived. Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976).