Com. ex rel. O'Lock v. Rundle

• Decision Date: 10 November 1964
• Parties: COMMONWEALTH of Pennsylvania ex rel. John O'LOCK, Appellant, v. Alfred T. RUNDLE, Warden, State Correctional Institution, Philadelphia, Pa.
• Court: Pennsylvania Supreme Court

Page 439

204 A.2d 439

415 Pa. 515

COMMONWEALTH of Pennsylvania ex rel. John O'LOCK, Appellant, v. Alfred T. RUNDLE, Warden, State Correctional Institution,

Philadelphia, Pa.

Supreme Court of Pennsylvania.

Nov. 10, 1964.

No appearance for appellant.

Earl R. Etzweiler, Asst. Dist. Atty., and Martin H. Lock, Dist. Atty., Harrisburg, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

ROBERTS, Justice.

In 1944, John O'Lock was indicted on numerous bills charging various felonious offenses, including several burglaries. Without the assistance of counsel at any stage, he entered pleas of guilty to all charges and was sentenced to an aggregate of 20 1/2 to 41 years imprisonment.

In 1951, with the aid of counsel, O'Lock filed a petition for writ of habeas corpus, the basic allegation of which was that he was unrepresented by counsel at the time he entered his guilty pleas. After an extensive hearing in 1952, the Court of Common Pleas of Dauphin County denied the petition on the then applicable ground that since neither a capital offense nor prejudice to petitioner was involved, counsel was not required.

In 1963, without counsel, petitioner again sought the issuance of a writ of habeas corpus. This petition was substantially similar to the 1951 petition, again raising particularly lack of counsel at the 1944 guilty pleas. ¹ However, O'Lock was now able to cite Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in support of his contention that his lack of counsel constituted a deprivation of due process of law.

The Court of Common Pleas of Dauphin County denied the present petition without hearing. After acknowledging the similarity between the 1951 and 1963 petitions, the court concluded that the Gideon case was not to be applied retroactively. ² It went on to hold that, even if the Gideon rule were to be so applied, the rule had no bearing on this case because the petitioner had entered pleas of guilty. The court further held that petitioner would have waived any right to counsel because a plea of guilty would act as an automatic waiver of counsel. Waiver was also found in the fact that petitioner did not request counsel, even though he had been before courts previously. Additionally, the court noted that, in its view, the lack of counsel did not result in prejudice to this petitioner. ³ On appeal, the Superior Court affirmed per curiam. Our Court granted allocatur to consider the constitutional issue thus raised.

It is quite evident that the dispositions below were erroneous and that petitioner was not accorded his constitutional right to the assistance of counsel. A scrutiny of the complete record, including transcripts of the pleas and sentencing proceeding in 1944 and of the comprehensive 1952 habeas corpus hearing on the 1951 petition, reveals that to remand the petition for a hearing now is unnecessary. Only one result is indicated. The only proper disposition of this case on its merits appears so clearly from the record that appropriate relief should be granted promptly.

As the quoted portion of the opinion in the court below indicates, reliance was placed on this Court's view, expressed in Commonwealth ex rel. Craig v. Banmiller, 410 Pa. 584, 189 A.2d 875 (1963), that the Gideon decision had no retroactive application. We have subsequently held that our conclusion there was incorrect. ⁴ Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964). Although, at present, there is no explicit holding by the Supreme Court of the United States on the matter, ⁵ it now appears that the Gideon principle is to be applied to convictions prior to the date of the decision in Gideon v. Wainwright. E. g., United States ex rel. Craig v. Myers, 329 F.2d 856 (3d Cir. 1964); United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir.), cert. denied, 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048 (1964); Geather v. State, 165 So.2d 229 (Fla.Dist.Ct. of App.1964); In re Palmer, 371 Mich. 656, 124 N.W.2d 773 (1963); see the memorandum decisions of the Supreme Court of the United States, e. g., 372 U.S. 766-770, 773-777, 779-782, 83 S.Ct. 1103-1107 (1963) (vacating state court judgments and remanding for further consideration in the light of Gideon).

Gideon interprets the Sixth Amendment guarantee of right to counsel, embodied as it is in the Fourteenth Amendment to the Constitution of the United States, as requiring that counsel be afforded to indigent defendants in the state courts. ⁶ And the ruling of White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), is that counsel must be afforded at every critical stage where rights may be preserved or lost in the criminal proceedings. That petitioner was not prejudiced by the absence of counsel is immaterial. Ibid.

Attempts to limit Gideon to situations where counsel has been requested but refused, or where trial has been had on a plea of not guilty, are unsound. See Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964), reversing Doughty v. Sacks, 175 Ohio St. 46, 191 N.E.2d 727 (1963) (plea of guilty); United States ex rel. Durocher v. LaVallee, supra, 330 F.2d at 307. We find no difficulty in characterizing a hearing on a guilty plea as a critical stage in the proceedings against the accused. Surely, such a hearing is a stage where rights may be preserved or lost. It is, in our view, as critical a stage for the accused as any he faces in the criminal proceedings against him. ⁷ In most instances, it may be the last crucial step in the proceedings, the procedural moment when nearly all significant rights are adjudicated, save those available to the accused on appeal or through collateral attack.

The hearing involves procedures and techniques with which only legal counsel will be familiar. It often may be a technical and intricate affair, and unrepresented laymen may not be expected to either fully grasp the intricacies of the proceedings or be aware of possible defenses. Nor may it be assumed that, in the absence of counsel, the accused is in a position to effectively present evidence and other considerations in mitigation of sentence. Only with the assistance of counsel may the accused be expected to know the defenses and other privileges available to him. 'Of all the rights that an accused has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.' Schaefer, 'Federalism and State Criminal Procedure,' 70 Harv.L.Rev. 1, 8 (1958).

'Bewildered by the mystifying language in which legal documents are cast, [the accused] will generally be incapable 'of determining for himself whether the indictment is good or bad.' Overwhelmed by the seemingly overpowering resources of the state, he may elect to plead guilty because he feels woefully ill-equipped to prepare his defense, 'even though he have a perfect one.' Unlike the defendant financially able to retain an attorney, he may be unaware of legal defects and complexities in the charges against him, and plead guilty to an offense which he has not committed.' United States ex rel. Durocher v. LaVallee, supra, 330 F.2d at 308.

'The right to counsel is not a right confined to representation during the trial on the merits.' Moore v. Michigan, 355 U.S. 155, 160, 78 S.Ct. 191, 194, 2 L.Ed.2d 167 (1957).

We hold that our courts must apply the Gideon principle to a plea of guilty. United States ex rel. Durocher v. LaVallee, supra; United States ex rel. Craig v. Myers, supra, 329 F.2d at 857-858; United States ex rel. Thomas v. Murphy, 227 F.Supp. 742, 744 (S.D.N.Y.1964) (dictum); see Doughty v. Maxwell, supra; White v. Maryland, supra; Rice v. Olson, 324 U.S. 786, 788, 65 S.Ct. 989, 991, 89 L.Ed. 1367 (1945); cf. Moore v. Michigan, supra; Carter v. People of the State of Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172 (1946).

This 'constitutional right, of course, does not justify forcing counsel upon an accused who wants none.' Moore v. Michigan, supra, 355 U.S. at 161, 78 S.Ct. at 195; Carter v. People of the State of Illinois, supra. But a finding of waiver may not be made lightly. E. g., Moore v. Michigan, supra; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Commonwealth ex rel. McCray v. Rundle, supra.

Indeed, in this case the Commonwealth alleged waiver in its return to the petition for a writ, ⁸ and the court below believed that the right to counsel had been waived. ⁹ Where, as here, the conviction record does not affirmatively show that the accused was offered counsel and declined counsel after appropriate inquiry by the court, the burden may not be placed upon the accused to show that he did not intelligently and understandingly waive counsel. That burden rests upon the Commonwealth. Carnley v. Cochran, 369 U.S. 506, 516-517, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1963). As we understand the prevailing principles of waiver, ¹⁰ neither the Commonwealth's conclusory allegations nor its proof at the 1952 hearing measure up to its burden. Nor is the court's determination on this issue (adopting, in essence, the Commonwealth's allegations ¹¹) sufficient to meet the applicable standards.

The court below, in concluding that if petitioner had a right to counsel he had waived such right, misconstrued the nature of an intelligent waiver. For support, the court quotes from petitioner's testimony at the earlier habeas corpus hearing which reveals only that O'Lock knew that he had waived a jury trial by entering his pleas on the bills of indictment. The only other supporting statement, also made at that hearing, was that petitioner may have subconsciously known that he could have procured counsel. ¹² In our view, this nebulous testimony is insufficient to support a finding that the accused in 1944 understood his constitutional right to either counsel of his own choosing or, if indigent, to court appointe...