Commonwealth v. Bliss

• Decision Date: 29 March 1976
• Parties: COMMONWEALTH of Pennsylvania v. William E. BLISS, Appellant.
• Court: Pennsylvania Superior Court

362 A.2d 365

239 Pa.Super. 347

COMMONWEALTH of Pennsylvania v. William E. BLISS, Appellant.

Superior Court of Pennsylvania.

March 29, 1976.

Richard D. Walker, Harrisburg, for appellant.

Marion E. MacIntyre, Deputy. Dist. Atty., Harrisburg, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.

SPAETH, Judge:

The record in this case suggests that appellant's trial counsel and his appellate counsel may both have been incompetent. We have concluded that on the particular facts presented the best solution is to quash the appeal, with a suggestion to the lower court to appoint new counsel to represent appellant and to determine whether any further proceedings are warranted.

I

On September 12, 1973, the grand jury of Dauphin County returned six bills of indictment against appellant. Bills 1648 and 1649 charged appellant with having raped and committed sodomy on a 16-year-old girl. Bill 1688 charged him with having raped a young woman who was in her 10th month of pregnancy. Bills 1709 and 1710 charged him with having kidnapped and committed involuntary deviate sexual intercourse upon an eight-year-old girl. Bill 1711 charged him with aggravated assault and battery of a 13-year-old girl. And Bill 1754 charged him with having indecently exposed himself to two teen-aged girls.

On September 26, 1973, appellant pleaded not guilty to all of these bills and on January 31, 1974, the bills were called for trial.

After summarizing the charges, the Deputy District Attorney stated to the court that on Bill 1711 the Commonwealth wished to move to dismiss the charge of aggravated assault and battery and instead to charge only simple assault. The district attorney went on to state that it was his understanding that appellant would then plead guilty to all of the bills.

Appellant was represented by counsel from the Dauphin County Public Defender's office. Counsel stated that appellant did 'agree to plead guilty to the charges with one exception. A question was raised concerning No. 1710 . . ..' When the court asked what the question was, the following colloquy ensued:

MR. GOOD: Under the law of the definition of kidnapping is a person doing a kidnapping is the unlawful removing of another a substantial distance or a substantial period. (Sic) The definition of what's substantial under this new code has not specifically been defined and the distance we do not feel was a substantial distance.

THE COURT: What section is that?

MR. GOOD: 2901, Your Honor. It involves another charge which Mr. Bliss is pleading guilty to and at my insistence its connected with the involuntary sexual deviate intercourse.

THE COURT: Which is what?

MR. GOOD: Which he is pleading guilty to out of the same incident, and there is also a kidnapping charge involved in there.

MR. DISSINGER: Your Honor, very briefly, the facts I think will reveal the young girl upon whom the involuntary sexual deviate intercourse was performed was taken from her bicycle into the car of the defendant and transported approximately a mile.

THE COURT: All right. Well, we are not going to argue that right now. Is your client goint to plead guilty to that or not guilty to the kidnapping charge? You have to made a decision.

MR. GOOD: We will plead not guilty and waive jury trial and let you decide it at this point.

THE COURT: I'm going to conduct the colloquy with the defendant.

(N.T. 3--4.) ^[1]

After this colloquy, the court accepted appellant's pleas of guilty and his waiver of a jury trial on the kidnapping charge, and heard testimony. Generally, the procedure followed was that the investigating officer assigned to the particular case testified as to what had happened, with the victim confining her testimony to identifying appellant as the person who had attacked her; on Bill 1711, the assault charge, the victim described the incident. In addition, a confession was admitted into evidence. Appellant did not testify. The only witness called by his counsel was one of the investigating officers, who testified that when confessing, appellant had 'impressed me with the fact that he was very, very truthful.' This officer also agreed with appellant's counsel that appellant had 'express(ed) the desire that he did need help and wished to obtain it.'

Upon conclusion of the testimony, the court revoked bail and ordered a presentence report. When the district attorney remainded the court the 'one outstanding matter is the indictment to the kidnapping charge,' the court stated:

THE COURT: Well, I feel that the defendant is guilty of that charge, and I so find him. It seems to me that he did take (the child) a substantial distance to facilitate the commission of a felony and held her for the purpose.

Mr. Bliss, you pled not guilty to kidnapping and I found you guilty of it. Under the law you have a right to file a motion for new trial or a motion in arrest of judgment if you want to appeal that decision. If you care to do that, you must do it within seven days. If you don't file an appeal within seven days, you may not thereafter file an appeal on the decision of the kidnapping charge.

You are entitled to counsel. Mr. Good will continue to represent you should you desire to appeal, and I'm sure he'll talk to you about whether or not you should pursue the matter any further. All right. (N.T. 44.)

Appellant did not file any post-trial motions.

On March 28 1974, appellant was brought before the court for sentencing. In total, the sentences imposed were for 22 1/2 years to 50 years, $5,000 in fines, and costs. ^[2]

There was no objection to any of the sentences. The presentence investigation report included a summary from the Harrisburg State Hospital suggesting 'a schizoid character disorder.' The summary said '(s)taff felt that (appellant's) behavior demonstrated a desire to remain hospitalized to escape the consequences of his charges and that he was not sincere in wanting psychiatric help. However it is the staff's feeling that outpatient psychiatric care should be part of the court recommendation as he is so easily led.' No witness was called at the sentencing proceeding on appellant's behalf.

On April 9, 1974, appellant, acting without counsel, filed a petition under the Post-Conviction Hearing Act. ^[3] On the first page of the petition he identified all of the bills and charges against him. In paragraph 3 of the petition he recited his total sentence of 22 1/2 to 50 years and noted that he had been tried by a judge without a jury, and also had pleaded guilty. In paragraph 4 he stated that he was eligible for relief because he had been denied his constitutional right to representation by competent counsel. In paragraph 5 of the petition he stated:

Counsel is considered incompetent because after reading penna. Crim.Law Crim. Proced. Manual, i973, pg. 92, para 2.--sec 6, Sentence for certain Sex Offenses. Petitioner now realises he had the right to have an opportunity to be heard, to be confronted with the witnesses against him, to have the witnesses against him, to have the right to cross examine, and to offer evidence of his own. Com V. Dooley, 209 Pa.Super. 519, (232 A.2d 45) 1967. My court appointed counsel did not advire me of these rights previous to my entering a plea of guilty. (Sic.)

In paragraph 6 of the petition he stated:

It is to my understanding that for the better administration of Justice and the more efficient punishment, treatment and rehabilitation of people convicted of crimes such as mine, and it is the opinion of this court that I, if at large, constitute a threat of bodily harm to members of the public, or an considered mentally ill, in lieu of sentence now imposed, for each crime, this court may sentence me to a state institution for an indefinite term having a minimum of one day and a maximum of my natural life.

(Act of Jan, 8, 1952, P.L. 1851. ^[4] (Sic.)

On April 24, 1974, the lower court denied appellant's post-conviction petition without appointing counsel and without a hearing. The court accompanied its order with a memorandum. The court stated that '(t)he only allegation in the petition' was regarding incompetent counsel; the court did not refer to the allegation in paragraph 6 of the petition regarding the sentences imposed. The court then stated that '(p)rior to accepting defendant's plea an extensive colloquy was conducted . . .. We have reviewed . . . the colloquy and find that all of the areas of complaint listed by defendant were covered . . .. We were satisfied both then and now that defendant was fully advised . . . and voluntarily and knowingly elected to plead guilty.' The court concluded by stating: that 'defendant had good reason to plead guilty since he was clearly and positively identified as the perpetrator of a series of sexual offenses that can only be categorized as atrocities;' that the only witness called by defendant was 'to show defendant's contriteness and how fully and openly he admitted the commission of these crimes;' and that while 'defendant is understandably aggrieved by the sentence of twenty-two and one-half to fifty years . . . he could have received a maximum sentence of ninety-nine years . . ..' The court did not refer to the fact that as to the kidnapping charge appellant had not pleaded guilty but had been tried by the court; nor did the court refer to defense counsel's argument at the trial regarding that charge.

On June 24 1974, appellant's counsel filed with this court a Petition for Leave to File Appeal without Payment of the Filing Fee. The petition was granted and, also on June 24, a writ of certiorari issued. The writ recites that an appeal has been taken 'from the Judgments of Sentence dated March 28, 1974 (and then identifies all of the...