Commonwealth v. Bable
Decision Date | 29 June 1977 |
Citation | 248 Pa.Super. 496,375 A.2d 350 |
Parties | COMMONWEALTH of Pennsylvania v. Kenneth Robert BABLE, Appellant. |
Court | Pennsylvania Superior Court |
Submitted Nov. 8, 1976.
Joseph E. Breman, Kittanning, for appellant.
James H. Owen, Asst. Dist. Atty., and Joseph A. Nickleach, Dist Atty., Kittanning, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT, and SPAETH, JJ.
Appellant contends that the on-the-record colloquy prior to his guilty plea was deficient because the court failed both to establish a factual basis for the plea and to explain the elements of the offense charged. [1] He also alleges that his trial counsel was ineffective for failing to challenge the plea on direct appeal from the judgment of sentence. agree and, therefore, vacate the judgment of sentence and permit appellant to withdraw his guilty plea.
Appellant stated that on December 28, 1972, while at the home of appellant's father, appellant and a companion consumed alcoholic beverages during most of the day. On their way to Pittsburgh, they stopped at several taverns where they continued drinking. The men became lost and stopped the car in Kittanning, Armstrong County, where they entered the Agway building and removed several items. The police, who were summoned by an alarm, arrested appellant and his companion on the above date.
On December 11, 1973, appellant entered a plea of guilty to burglary [2] which the court accepted. On April 4, 1974, the lower court sentenced appellant to a term of imprisonment of four to twelve years. On December 2, 1974, appellant filed a petition under the Post Conviction Hearing Act [3] (hereinafter PCHA). The court appointed counsel to represent appellant and he filed an amended PCHA petition. On March 24, 1976, a PCHA hearing was held before the same judge who accepted appellant's guilty plea. The court denied post conviction relief and this appeal followed.
Appellant contends that his original counsel was ineffective for failing to raise the inadequacy of his guilty plea on direct appeal. [4] Section three of the PCHA requires that:
Section 4 of the PCHA defines "waived" as follows:
It is well-settled that ineffective assistance of counsel does constitute an extraordinary circumstance which entitles one to PCHA relief. Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973); Commonwealth v. Green, 234 Pa.Super. 236, 338 A.2d 607 (1875). Commonwealth v. Danzy, 234 Pa.Super. 633, 636, 340 A.2d 494, 496 (1975).
Turning to the merits of appellant's claim, we find that Commonwealth v. Maddox, 450 Pa. 406, 407-408, 300 A.2d 503, 504 (1973); see also, Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 (1973).
It is also clear that before accepting a plea of guilty, the trial court must satisfy itself that there is a factual basis for the plea. Commonwealth v. Maddox, supra; Commonwealth ex rel. West v. Rundle, supra. In Commonwealth v. Ingram, 455 Pa. 198, 203, 316 A.2d 77, 80 (1974), the Supreme Court held that:
Finally, in Commonwealth v. Minor, Pa., 356 A.2d 346, 348 (1976), the Supreme Court held that:
Thus, under Pa.R.C.P. 319(a) and Pennsylvania case law, the trial court must establish on the record both a factual basis for the plea and an understandable outline of the elements of the offense charged.
In the instant case, the following colloquy occurred at the guilty plea:
Preliminarily, we note that the trial court failed to obtain an adequate factual basis for the plea because it did not ascertain what appellant's conduct was while in the Agway building. Further, the lower court did not adequately explain the elements of the offense of burglary to appellant. Under the Penal Code, burglary was defined as follows:
Whoever, at any time, wilfully and maliciously, enters any building with intent to commit any felony therein, is guilty of burglary, a felony, and upon conviction thereof, shall be sentenced to pay a fine not exceeding ten thousand dollars ($10,000), or to undergo imprisonment, by separate or solitary confinement at labor, not exceeding twenty (20) years, or both.
It is clear that the lower court did not state that appellant had to have the specific intent to commit a felony at the time he entered the building nor did it define the term felony for appellant. While it is true that the term felony may connote some meaning to appellant, it is obvious that the average layman will not understand its legal meaning. Therefore, We hold that counsel was ineffective for failing to take a direct appeal and that the guilty plea in the instant case was not knowingly and intelligently entered because the trial court failed to outline the elements of the crime charged in understandable terms.
We vacate the judgment of sentence and permit appellant to withdraw his guilty plea.
WATKINS, President Judge, and CERCONE and VAN der VOORT, JJ., dissent.
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Notes:
[1] Appellant also contends that his plea was not knowingly and intelligently entered because his testimony at the plea proceeding indicated a valid defense of intoxication and therefore the court erred in not rejecting his guilty plea after hearing...
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