Com. ex rel. Fairman v. Cavell
| Decision Date | 27 September 1966 |
| Citation | 423 Pa. 138,222 A.2d 722 |
| Parties | COMMONWEALTH of Pennsylvania ex rel. Richard Jess FAIRMAN, Appellant, v. A. C. CAVELL, Superintendent, State Correctional Institution, Bellefonte, Pa. |
| Court | Pennsylvania Supreme Court |
W. Thomas Malcolm, Indiana, for appellee.
Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and ROBERTS, JJ.
The appellant, Richard J. Fairman, on January 2, 1961, plead guilty without counsel to district attorney's bills of indictment charging burglary, larceny and receiving stolen goods. He was sentenced to a term of imprisonment under which he is presently confined.
On February 8, 1965, he instituted an action in habeas corpus which, after hearing, the trial court dismissed. On appeal, the Superior Court affirmed. We granted allocatur.
The Sixth Amendment to the Constitution of the United States, which is applicable to criminal proceedings in state While counsel need not be 'forced' on an accused and this right may be effectively waived, a judicial finding of such may not be made lightly: Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Further, where the trial or plea proceedings record fails to affirmatively show that the accused was offered counsel and declined such assistance, the burden is upon the Commonwealth to show that such assistance was intelligently and understandingly waived: Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), and Commonwealth ex rel. O'Lock v. Rundle, supra.
courts, requires that the accused be given the assistance of counsel at every critical stage of a criminal prosecution. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); and, Commonwealth v. Sliva, 415 Pa. 537, 204 A.2d 455 (1964). The ruling of Gideon is retroactive and the hearing on a guilty plea is a 'critical stage' in the criminal prosecution. Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964).
In the instant case, no transcript was made of the plea proceedings. However, the court records disclose, that on the district attorney's bills of indictment, Fairman signed the following printed statement, 'And now to wit: The second day of January, A.D. 1961, the defendant pleads guilty, waiving grand jury action and right to counsel.'
At the habeas corpus hearing, Fairman testified, that on January 2, 1961, he was indigent; that at no time before or during the plea proceedings was he advised of his right to be represented by counsel, or did anyone offer to appoint counsel to assist him. The record discloses that the only testimony offered in refutation was that of the district attorney at the time the guilty pleas were entered. The district attorney testified that he did not remember the Fairman case specifically, but in every case it was his practice to advise an uncounseled defendant of his right to have an attorney, and if he were without means to secure such assistance, the court would appoint counsel to represent him.
We are not persuaded that the Commonwealth met its burden of proving that the right to the assistance of counsel was effectively waived. The signed written statement of the guilty plea, including a waiver of counsel and presentment to the grand jury, is not in itself sufficient to establish an Intelligent and Understanding waiver. See, Commonwealth ex rel. Ross v. Botula, 206 Pa.Super. 1, 211 A.2d 42 (1965). While it certainly supports a conclusion that Fairman agreed to proceed with his plea without the benefit of counsel, it clearly, without more, does not establish that he did so intelligently and with full understanding of his right to the assistance of counsel. Nor are we persuaded that the testimony of the district attorney, considered with the signed printed waiver, is sufficient to meet the Commonwealth's clear burden of proving that This particular defendant was fully apprised of his constitutional rights at this very critical stage in the prosecution.
We also note that it is not asserted or hinted, that the trial judge advised Fairman of his right to counsel, or made any inquiries as to whether or not he knew his rights in this regard or the nature and impact of his plea. This whole problem could have been avoided if this procedure had been followed and an adequate record effected. See, Commonwealth ex rel. Fink v. Rundle, Pa., 222 A.2d 717 (1966). While the trial judge, who also presided in the habeas corpus action, does state in the opinion filed in support of the dismissal of the action, that he distinctly remembers the...
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