United States ex rel. Crosby v. Brierley, 17044.

• Decision Date: 09 December 1968
• Docket Number: No. 17044.,17044.
• Citation: 404 F.2d 790
• Parties: UNITED STATES of America ex rel. Albert B. CROSBY, Appellant, v. Joseph R. BRIERLEY, Superintendent, Philadelphia, Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

404 F.2d 790 (1968)

UNITED STATES of America ex rel. Albert B. CROSBY, Appellant, v. Joseph R. BRIERLEY, Superintendent, Philadelphia, Pennsylvania.

No. 17044.

United States Court of Appeals Third Circuit.

Argued September 20, 1968.

Decided December 9, 1968.

COPYRIGHT MATERIAL OMITTED

David H. Kubert, Philadelphia, Pa., for appellant.

James D. Crawford, Asst. Dist. Atty., Philadelphia, Pa. (Welsh S. White, Asst. Dist. Atty., Michael J. Rotko, Asst. Dist. Atty., Chief, Appeals Division, Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, KALODNER and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This is a habeas corpus proceeding in which relator attacks his plea of guilty to two murder indictments in a state court. He was represented by private counsel when the pleas were entered to two bills of indictment for murder. In response to the court crier's inquiry, "How plead you, guilty or not guilty?", relator answered, "Guilty generally". The question of the validity of that plea is now before us. A three-judge court conducted a hearing on the plea under Pennsylvania law and procedure to determine the degree of guilt; after a seventy-minute hearing, relator was sentenced to life imprisonment. Having exhausted his remedies in the state courts, Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 202 A.2d 299 (1964), cert. den. 379 U.S. 976, 85 S.Ct. 677, 13 L.Ed.2d 567 (1965), he petitioned for a writ of habeas corpus in the District Court below. An evidentiary hearing was held; his petition was denied; and this appeal followed.

We must determine whether the plea¹ was made voluntarily after proper advice and with full understanding of the consequences; without these ingredients, the due process requirements of the Fourteenth Amendment are not met. Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed.2d 1009.

Bills of indictment were returned against relator, charging murder and manslaughter of his wife and her male companion. Three separate arraignments were held. He entered a plea of not guilty at the first. When arraigned a second time, he entered consecutive pleas of guilty, not guilty, and guilty; the arraignment judge then refused to accept any plea from the relator at that time. The third arraignment took place on the day of his trial. The record indicates that the court crier asked him one question on each indictment to which he made the "guilty generally" response. It discloses that relator was asked no questions concerning his understanding of the plea or its consequence.²

Relator charges that neither his counsel nor the court explained the consequences of his plea of guilty, that he did not understand the nature of it, and that he entered it under the assumption that the trial court would pass on the merits of a defense of excusable homicide. If the plea was not voluntarily and intelligently made, he would be entitled to have it vacated and his sentences withdrawn. A guilty plea, given under circumstances which deprive it of its voluntariness, is void. Machibroda v. United States, 368 U.S. 487, 494, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). As was stated in Kercheval v. United States, supra, 274 U.S. at 223, 47 S.Ct. at 583: "A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences."

Normally a reviewing court is assisted by an examination of the record surrounding the entry of the plea at trial. Faced with a record that is barren of traditional inquiries made of the defendant in such cases, we are quick to recognize the difficulties now before us. There is no record as is contemplated by Pennsylvania Rules of Criminal Procedure No. 319 and its federal counterpart, Rule 11, both of which anticipate an inquiry of the defendant to form the factual basis that the plea is "competently and intelligently made"³ or "made voluntarily with understanding of the nature of the charge and the consequences of the plea".⁴

Trial courts have a duty to do more than simply listen to an articulation or a verbalization of a plea of guilty by a defendant; they have a duty to insure that the defendant understands the consequences of his act. This is not so much the result of promulgations of federal and state rules of criminal procedure as it is a part of the basic concepts of proper judicial administration in Pennsylvania⁵ and in the federal courts.⁶

We have heretofore spoken in a challenge to a guilty plea entered in a Pennsylvania court: "The question whether the plea of guilty is voluntarily and intelligently made can only be determined if it is shown on the record what comprehension the accused had of the nature and elements of the charge against him, of the defenses available to him, and of the consequences which might flow from a plea of guilty, * * * and these facts should appear on the record at the time the plea is entered." United States ex rel. McDonald v. Commonwealth of Pa., 3 Cir., 343 F.2d 447 at 451 (1965.)⁷

The Pennsylvania Supreme Court has also emphasized that a court must establish such a comprehension by the defendant in murder cases even though the defendant is represented by counsel: "It would be wise for the court to make particular inquiry as to the defendant's knowledge of the nature of the charge, of his right to trial by jury, and of the general consequences of his plea. It is desirable to have such matters made known to the defendant by the court even though he be represented by counsel. When a defendant enters a plea to murder, more is required than simply his pleading orally or endorsing the indictment, as in other cases." Commonwealth ex rel. Barnosky v. Maroney, 414 Pa. 161, 165, 199 A.2d 424, 426 (1964).⁸

The trial court did not follow the salutary procedures suggested by tradition, established by good reason, and now mandated by the Pennsylvania Rules of Criminal Procedure. But this dereliction does not, of itself, debase the trial proceedings; the failure of the state court to have the inquiry made does not, of itself, entitle the relator to federal habeas corpus relief. There must be a factual showing that the guilty plea was not intelligently and knowingly entered; that there was an actual deprivation of his constitutionally-protected guarantee of due process.

The procedural burden of establishing the validity of a plea of guilty in such cases shifts to the government in federal prosecutions,⁹ and to the Commonwealth in Pennsylvania state proceedings. United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3 Cir. 1968).¹⁰ Whether the plea was knowingly and voluntarily entered is always a question of fact.¹¹ In the absence of an adequate record at arraignment as to the factual basis on which the plea was entered, it becomes necessary to examine thoroughly the "totality of circumstances" on a case by case basis,¹² with the Commonwealth having the burden of proof on the issue. If Crosby did understand the nature and consequences of his plea of guilty, he is entitled to no relief, irrespective of the trial court's failure to conduct an inquiry into the factual basis of the defendant's knowledge and understanding of the technical plea entered. United States ex rel. McArthur v. Rundle, 402 F.2d 701 (3 Cir. 1968); United States ex rel. Smith v. Hendrick, 260 F.Supp. 235 (E.D.Pa.1966), aff'd per curiam, 378 F.2d 373 (3 Cir. 1967); Kotz v. United States, supra.

This is not to say that the action, or inaction, of the trial court is not relevant to our review. Although the non-observance of the recommended procedure of conducting an inquiry into the extent of the defendant's understanding is not conclusive on the issue, it nevertheless forms an integral part of the totality of circumstances which must be considered in determining whether the plea was knowingly entered. We must now proceed to examine other relevant circumstances attendant to the entry of the plea. In this respect, the nature of the legal advice and information imparted from attorney to client, and the facts adduced at trial become relevant on the issue of the defendant's actual, rather than presumptive, understanding of his plea.

There being no dialogue on the record relating to the quality of the relator's understanding, it becomes necessary to examine the testimony of the trial counsel describing his counseling experience (taken at the habeas corpus hearing before the District Court), and to review the testimony of the relator at the hearing on the guilty plea.

Our inquiry becomes important because of the technical particulars of the Pennsylvania law of homicide, and the peculiar nature of the facts before us. The relator admitted firing the shots that caused the fatal wounds. Admitting to an act of homicide, however, is not tantamount to confessing criminal liability. In Pennsylvania, homicide may be justifiable or excusable, and thus carry no criminal guilt in the legal sense.¹³ If an indictment is returned against the actor, whether the taking of life by him is justified or excused becomes a jury question, capable of being raised only in a plea of not guilty.¹⁴ Illegal and unlawful homicide is murder or manslaughter, depending upon attendant circumstances; and one indicted for these crimes may plead "guilty generally" to the charges, and thereby waive his constitutionally protected right of trial by jury.¹⁵

Pennsylvania law¹⁶ permits the defendant to waive trial by jury in all criminal cases "except murder and treason". Commonwealth v. Petrillo, 340 Pa. 33, 16 A.2d 50 (1940). A voluntary...