Com. v. Anthony

• Decision Date: 24 April 1984
• Citation: 475 A.2d 1303,504 Pa. 551
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Curtis L. ANTHONY, Appellant.
• Court: Pennsylvania Supreme Court

Page 1303

475 A.2d 1303

504 Pa. 551

COMMONWEALTH of Pennsylvania, Appellee, v. Curtis L. ANTHONY, Appellant.

Supreme Court of Pennsylvania.

Submitted Jan. 25, 1984.

Decided April 24, 1984.

[504 Pa. 554] Brian J. O'Neill, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Gaele McLaughlin Barthold, Philadelphia, for appellee.

OPINION

McDERMOTT, Justice.

On September 4, 1975, appellant, Curtis L. Anthony, was arrested on charges of felony-murder, robbery, criminal conspiracy, and possession of an instrument of crime, for his participation in the hold-up of a clothing store, which resulted in the shooting death of the proprietor. The slaying had been witnessed by the victim's partner. Shortly after his arrest, appellant gave written and taped-recorded statements admitting complicity and implicating his confederate.

Prior to trial, appellant negotiated a plea bargain with the prosecutor. In return for a plea to charges of murder and robbery, the Commonwealth certified that the murder rose no higher than third degree and nol prossed all remaining charges. Before accepting appellant's plea, the trial judge engaged in an extensive guilty plea colloquy with appellant, probing his knowledge and understanding of his rights and his willingness to forego them. After his plea appellant was sentenced to concurrent terms of imprisonment of 10 to 20 years for third degree murder, and 2 1/2 to 5 years for robbery. No petition to withdraw the plea was filed nor direct appeal ever perfected; rather, appellant sought relief under the Post Conviction Hearing Act (hereinafter "PCHA"). ¹ Following a hearing on the petition, appellant's requested relief was denied. The order of the PCHA Court was affirmed on appeal by the Superior Court (Opinion, McEwen, J. joined by Cirillo and Hester, JJ.). Commonwealth v. Anthony, 307 Pa.Super. 312, 453 A.2d 600 (1982). This appeal followed.

Prior to reviewing the merits of appellant's claim we note that the PCHA Court held, and the Commonwealth has here argued, that the failure of appellant to effect a direct appeal constituted a waiver of the issues raised herein. However, appellant's complaints were raised in the context of an ineffective assistance of counsel claim: an "extraordinary circumstance" under 42 Pa.C.S.A. § 9544(b), sufficient to permit review of the alleged errors. Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982). As a result, the Superior Court elected to address appellant's substantive claims, as do we, in light of the standard that counsel will not be held to have been ineffective for failing to raise a meritless claim. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Appellant urges that because he was not explicitly informed during his guilty plea colloquy that a jury verdict must be unanimous, it was defective, and consequently, he now is entitled to a withdrawal of his negotiated plea and a trial. See Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). It is conceded that the colloquy was sufficient in all other aspects.

In evaluating appellant's claim, we find guidance in the most recent interpretation of Williams, supra, by this Court in Commonwealth v. Carson, --- Pa. ---, 469 A.2d 599 (1983), in which Mr. Justice Zappala noted:

It must be recognized that Williams did not establish a prophylactic rule requiring a new trial for failure of the record to indicate the defendant's knowledge of each and every element of the jury trial right which he was waiving. The focus in Williams was, and it remains, whether the waiver was knowing and intelligent, not whether certain talismanic questions were asked and answered.

Id. 469 A.2d at 600.

Knowledge by the defendant of the nature of the consequences of a plea of guilty may be found from the totality of the circumstances and is not limited to direct instruction by the court. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). As Mr. Justice Flaherty wrote in Shaffer:

The true constitutional imperative is that the defendant receive "real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." (Citation omitted.)

Id. at 350, 446 A.2d at 595. In that case, the elements of the offenses charged were spelled out in the Commonwealth's case, and the defendant elected to plead guilty. We held that no further advices were required.

Furthermore, we cited with approval the reasoning articulated on this issue by the United States Supreme Court in Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976):

It may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. Id. at 647, 96 S.Ct. at 2258, 49 L.Ed.2d at 116.

Mr. Justice Flaherty continued this analysis by stating:

So also may we presume that, absent an assertion that appellant did not understand the nature of the crimes, counsel explained the nature of the offense in sufficient detail to give him notice of that which he admits by entering a plea of guilty. The Court in Henderson indicated that the validity of a plea may be determined from the "totality of the circumstances" attendant upon the entry of the plea. This approach was discussed by th[at] Court as follows:

[The State] contends that ... [i]nstead of testing the voluntariness of a plea by determining whether a ritualistic litany of the formal legal elements of an offense was read to the defendant, ... the court should examine the totality of the circumstances and determine whether the substance of the charge, as opposed to its technical elements, was conveyed to the accused. We do not disagree with the thrust of [the State's] argument....

Id. at 644, 96 S.Ct. at 2257, 49 L.Ed.2d at 114 (emphasis supplied).

Shaffer, supra, 498 Pa. at 350, 446 A.2d at 595.

Similar analyses have been employed by this Court in Commonwealth v. Smith, 498 Pa. 661, 450 A.2d 973 (1982) and Commonwealth v. Gardner, 499 Pa. 263, 452 A.2d 1346 (1982). In Smith, supra, the record colloquy omitted an explanation of the jury unanimity and defendant participation in the jury selection requirements. Notwithstanding this omission, this Court found that a written form signed by the defendant included the neglected requirements and cured the defective colloquy. Likewise, in Gardner, supra, a defective guilty plea colloquy was not considered fatal when it was supplemented by testimony of defense counsel that he had informed his client of his jury trial rights. ²

A guilty plea is an acknowledgement by a defendant that he participated in the commission of certain acts with a criminal intent. He acknowledges the existence of the facts and the intent. The facts that he acknowledges may or may not be within the powers of the Commonwealth to prove. However, the plea of guilt admits that the facts and intent occurred, and is a confession not only of what the Commonwealth might prove, but also as to what the defendant knows to have happened.

A defendant may plead guilty for any reason: to shield others, avoid further exposure, to diminish the penalty, to be done with the matter, or any secret reason that appeals to his needs. What is generally and most objectively accepted is that a plea is offered to relieve conscience, to set the record straight and, as earnest of error and repentance, to accept the penalty.

Pa.R.Crim.P. 319 requires that a guilty plea be offered in open court, and sets a procedure to determine voluntariness and whether the defendant is acting knowingly and intelligently. ³ As noted in the comment to Rule 319, the minimum to be determined is:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he has the right to trial by jury?

(4) Does the defendant understand that he is presumed innocent until he is found guilty?

(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Under this rule, beside determining whether the plea is voluntary, knowledgeable and intelligent, the court must also determine whether there is a factual basis for the plea: i.e., whether the facts acknowledged by the defendant constitute a prohibited offense. This salutary requirement is to prevent a plea where in fact the legal requirements have not been met; and, to name and define the offense, supported by the acts, so the defendant will know the legal nature of the guilt to which he wishes to plead. No more than these inquiries are required.

A guilty plea is not a ceremony of innocence, it is an occasion where one offers a confession of guilt. If a defendant voluntarily, knowingly, and intelligently wishes to acknowledge facts that in themselves constitute an offense, that acknowledgement is independent of the procedures of proving or refuting them. How they would be proved, what burdens accompany their proof, what privileges exist to avoid their proof, what safeguards exist to determine their accuracy, and under what rules they would be determined, by whom and how, are irrelevant. The defendant is before the court to acknowledge facts that he is instructed constitute a crime. He is not there to gauge the likelihood of their proof, nor to weigh them in the light of the available procedures for their proof. He is there to voluntarily say what he knows occurred, whether the Commonwealth would prove them or not, and that he will accept their legal meaning and their legal consequence. The requirements of Rule 319 do not mandate any specific language. As we held in Carson, supra, all that is required is that the defendant understand, have knowledge of the nature...