Commonwealth v. LaSane
| Decision Date | 14 July 1978 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Thomas LaSANE, Appellant. |
| Court | Pennsylvania Supreme Court |
Submitted Jan. 10, 1977.
Robert Jay Vedatsky, Philadelphia, for appellant.
F Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst Dist. Atty., Chief, Appeals Div., for appellee.
Before EAGEN C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ. OPINION OF THE COURT
On October 2 1972, Thomas LaSane plead guilty to murder generally in the Court of Common Pleas of Philadelphia and the Commonwealth certified the degree of guilt rose no higher than murder of the second degree. The trial court accepted the plea, found LaSane guilty of murder of the second degree, and imposed a sentence of not less than seven nor more than twenty years imprisonment. No post-verdict motions were filed and no appeal from the judgment of sentence was entered. On April 23, 1975, LaSane filed a petition for relief under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1, Et seq., 19 P.S. § 1180-1 Et seq. (Supp.1977-78) (Hereinafter: PCHA). Counsel was appointed to assist him. Following a hearing, relief was denied. This appeal is from that order.
LaSane claims the post-conviction hearing court erred in denying relief for the following reasons:
1) his guilty plea was ineffective because the record does not show the plea was knowing, intelligent, and voluntary;
2) he was denied effective assistance of counsel; and,
3) he was denied his constitutional right to a speedy trial.
Additionally, in a "Reply Brief," LaSane states in pertinent part:
"(the record shows he was) confused and bewildered by the entire guilty plea process (and was p)ressured by his family, inadequately represented by his attorneys, and unclear as to precisely what was taking place, (and thus) did not knowingly and voluntarily enter a guilty plea, (and i)f these arguments are accepted, they clearly demonstrate that LaSane did not knowingly and understandingly waive his right to appeal from his conviction."
To be eligible for relief under the PCHA, a petitioner must prove, inter alia:
"That the error resulting in his conviction and sentence has not been . . . waived."
Section 3(d) of the PCHA, 19 P.S. § 1180-3(d) (Supp.1977-78).
Furthermore, Section 4(b) of the PCHA, 19 P.S. § 1180-4(b) (Supp.1977-78), provides:
Finally, Section 4(c) of the PCHA, 19 P.S. § 1180-4(c) (Supp.1977-78), provides:
"There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure."
Since the validity of LaSane's plea was cognizable on direct appeal, Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. Hill, 457 Pa. 1, 319 A.2d 886 (1974), the issue was waived and could not be raised in the post-conviction proceeding unless LaSane either rebutted the presumption that the failure to raise the issue on direct appeal was knowing and understanding or alleged and proved the existence of an extraordinary circumstance justifying the failure to raise the issue. LaSane argues the issue of the validity of his plea is not waived because extraordinary circumstances exist to excuse his failure to raise the claim on direct appeal, namely, a deprivation of his appellate rights, see Commonwealth v. Tunnell, 463 Pa. 462, 345 A.2d 611 (1975), and/or ineffective assistance of counsel, see Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973).
Although a deprivation of his appellate rights is now advanced as an extraordinary circumstance, it was not advanced in the post-conviction relief proceedings in the trial court and accordingly we may not now consider it. See Commonwealth v. Moore, 462 Pa. 231, 340 A.2d 447 (1975); Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). Ineffective assistance of counsel was alleged as an extraordinary circumstance justifying the failure to challenge the validity of the plea on direct appeal and has been pursued; thus, we must determine if this allegation has been established as required by Section 4(b) (2) of the PCHA, 19 P.S. § 1180-4(b)(2) (Supp.1977-78), to determine if we should examine the validity of the plea. Furthermore, since LaSane is represented in these post-conviction proceedings for the first time by counsel other than his counsel at the plea proceedings, we will also consider his claim of ineffective counsel, advanced as an independent basis for relief, in his post-conviction hearing petition and here on appeal, as a separate basis for relief. Section 3(c)(6) of the PCHA, 19 P.S. § 1180-3(c)(6) (Supp.1977-78) and Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). LaSane also had the burden of proving ineffectiveness of counsel as an independent basis for relief. Section 3 of the PCHA, 19 P.S. § 1180-3.
To support his argument that counsel was ineffective, LaSane claims: (1) James Owens, co-counsel at the time the plea was entered, did not adequately prepare before advising him to plead guilty [1] in that he did not review the "briefs of counsel and the decision of the court on the suppression application to evaluate the chances of having the denial (order) reversed on appeal"; [2] and, (2) Owens failed to file a motion to dismiss the charges because of delay between arrest and trial. [3]
The hearing court "found as a fact that (LaSane's) trial counsel ably and vigoriously represented him" and concluded "as a matter of law that (LaSane) was not deprived of his constitutional right to representation by competent and effective counsel."
As to LaSane's first claim, the background is this:
Initially, Feingold alone represented LaSane. He filed a motion to suppress an incriminatory statement given by LaSane to police, but the motion was denied. Feingold, despite having experience in the criminal-law area, did not consider himself sufficiently knowledgeable to try a homicide case because of his inexperience with that particular type of charge. Moreover, Feingold felt he was too friendly with LaSane's family to properly handle the case. As a result, Owens was appointed as co-counsel for LaSane four days prior to the date set for trial. In preparing for trial, Owens, inter alia, conferred with Feingold, the chief of the homicide division of the district attorney's office, and another representative of the district attorney's office; reviewed the "entire file of the District Attorney's Office"; reviewed the notes of testimony from the suppression hearing; prepared questions for voir dire; prepared rough notes for an opening statement; interviewed the police officer to whom the incriminating statement was given; outlined the manner in which the "trial would go"; and, conferred with LaSane and a representative of the district attorney's office about entering a guilty plea. [4]
Prior to trial, Owens advised LaSane to plead guilty. Owens explained to LaSane "in detail" the consequences of pleading guilty and discussed the matter with members of LaSane's family. LaSane objected to pleading guilty because he wanted to testify and thereby correct certain portions of the incriminating statement he considered inaccurate. Owens concluded that LaSane's testimony would be prejudicial to his case and thus advised against such an approach. [5]
The Commonwealth offered to certify the crime rose no higher than murder of the second degree and to recommend a certain sentence. LaSane objected to the length of the sentence and Owens sought and obtained a reduction in the length of sentence to be recommended. LaSane then agreed to plead guilty.
LaSane does not now advance any legal or factual reason to support a conclusion that his confession was illegally obtained. [6] The assertion that Owens did not consider the possibility of a reversal of the suppression court's order is contradicted by the evidence. As previously mentioned, Owens did review the notes of testimony from the suppression hearing and conferred with the officer who took LaSane's statement. [7] Thus, we cannot conclude Owens was ineffective for advising LaSane to plead guilty, rather than go to trial and thereafter appeal the suppression court's order. First, he did consider that possibility as evidenced by the review of the notes of testimony and the conference with the police officer. Second, there is no apparent legal reason why the suppression court's order would have been reversed on appeal. Third, the advice given to LaSane had "Some reasonable basis designed to effectuate (LaSane's) interests" (emphasis added), Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967), namely, avoiding a possible conviction of murder of the first degree and a more severe sentence. [8] Accordingly, LaSane's first contention is without merit and counsel cannot be deemed ineffective on the basis of LaSane's first claim.
As to the claim of ineffectiveness for failure to seek a dismissal of the charges on the ground of a violation of the constitutional speedy-trial requirement, LaSane asserts the delay in the commencement of the trial deprived him of the testimony of an alibi witness who died about two months before the date of trial.
As to this, the record is as follows:
Owens testified he did not remember LaSane or anyone else...
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