Summary
In Commonwealth v. Gilmer, 435 Pa. 569, 257 A.2d 548 (1969), the Supreme Court held that where a criminal defendant alleges he did not know that withdrawal of his motion for a new trial foreclosed his right of appeal, a hearing was required to determine the merit of the allegation.
Summary of this case from Commonwealth v. Matcheson et alOpinion
April 21, 1969.
October 9, 1969.
Criminal Law — Appeal — Waiver — Withdrawal of post-trial motions — Knowledge by defendant of effect of withdrawal of motions.
Petitioner for post-conviction relief was convicted of murder in the first degree and was sentenced to life imprisonment. He knowingly and voluntarily agreed to the withdrawal of post-trial motions filed by him. Petitioner claimed that he did not know that by withdrawal of the post-trial motions he would also waive his right to appeal. The court below dismissed the petition without a hearing.
It was Held that petitioner was entitled to a hearing on his petition for post-conviction relief.
Mr. Justice ROBERTS filed an opinion, in which he stated the following:
A hearing is necessary. Petitioner has raised a factual issue the determination of which is not concluded by the record. Should petitioner's claim be found to be true as a matter of fact, he would be entitled to relief under Douglas v. California.
Mr. Justice EAGEN filed a concurring opinion (in which Mr. Justice JONES and Mr. Justice COHEN joined), in which he stated the following:
I concur in the conclusion that petitioner is entitled to a hearing on his petition for post-conviction relief, but I desire "to enter a caveat".
In Commonwealth v. Wilson, 430 Pa. 1, the Supreme Court stated that a convicted criminal defendant could not effectively abandon or waive his right to appeal and his right to the assistance of counsel in the furtherance of the appeal unless he knew or was informed what these rights were. In subsequent cases, including Commonwealth v. Ritchey, 431 Pa. 269, the Court specifically ruled that there cannot be a finding of a knowing and intelligent waiver unless the accused was explicitly informed of such rights. The ruling in Ritchey was an unwarranted extension of what was said in Wilson. If the record establishes that the accused fully understood and knew of his rights, both to appeal and to the assistance of counsel, he may effectively waive these rights even though he has not been explicitly informed thereof either by the court or his counsel.
The record in the instant case is not a "silent trial record". There is at least sufficient evidence to show a prima facie waiver of the rights involved. Under such circumstances, the burden of proof should be upon petitioner.
Mr. Chief Justice BELL dissented.
Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeal, No. 198, Jan. T., 1969, from order of Court of Oyer and Terminer of Lackawanna County, Oct. T., 1947, No. 18, in case of Commonwealth v. John J. Gilmer. Order reversed and case remanded.
Petition for post-conviction relief.
Decree entered dismissing petition without hearing, opinion by HOBAN, P. J. Petitioner appealed.
Joseph Wassell, for appellant.
Harry P. O'Neill, Assistant District Attorney, and Joseph J. Cimino, District Attorney, for Commonwealth, appellee.
This case involves the narrow question whether appellant is entitled to a hearing under the Post Conviction Hearing Act. On October 14, 1947, after a jury trial, appellant was convicted of murder in the first degree and was sentenced to life imprisonment. Post trial motions were filed and then withdrawn. Appellant now claims that although he knowingly and voluntarily agreed to the withdrawal of the post trial motions, he did not know that this would also waive his right to appeal. The court below, relying on the post trial record colloquy, which discloses that appellant stated that he voluntarily agreed to the withdrawal of the motions, dismissed appellant's petition without a hearing.
We agree with appellant that a hearing is necessary. Appellant has raised a factual issue the determination of which is not concluded by the record. If appellant's claim is found to be true as a matter of fact, he would be entitled to relief under Douglas v. California, 372 U.S. 353, 83 S.Ct. 814 (1963). There is nothing in the record to disclose that appellant's claim is patently frivolous, nor has a hearing on this issue ever been held. Thus appellant must now have a hearing. Act of January 25, 1966, P. L. (1965) 1580, § 9, 19 P. S. § 1180-9. See, e.g., Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968). We of course take no position as to whether appellant's claims are meritorious, but merely remand for the PCHA court to make initial factual determinations.
The order of the Court of Oyer and Terminer of Lackawanna County is reversed and the case is remanded for proceedings consistent with this opinion.
Mr. Chief Justice BELL dissents.
I concur in the conclusion that Gilmer is entitled to a hearing on his petition for post conviction relief, but I desire "to enter a caveat".
Gilmer had an absolute right to appeal from his conviction and sentence, and if he was indigent at the pertinent time, he was entitled to the assistance of free counsel in perfecting and prosecuting an appeal. Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). The hearing in the court below should be directed to a determination of whether or not Gilmer intelligently and intentionally abandoned or waived these rights. Of course, he could not "intelligently" abandon or waive either right unless he completely understood what the right was. Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965).
In Commonwealth v. Wilson, supra, in speaking of a convicted criminal defendant's right to appeal and of his right to the assistance of counsel in the furtherance of the appeal, we said that a convicted criminal defendant could not effectively abandon or waive such rights unless he knew or was informed what these rights were. In subsequent cases dealing with this subject, we specifically ruled that there cannot be a finding of a knowing and intelligent waiver unless the accused has been explicitly informed of such rights. See Commonwealth v. Ritchey, 431 Pa. 269, 245 A.2d 446 (1968). While I joined with all of the other members of the Court in the opinion filed in Ritchey and in other opinions of like import, upon further consideration, I am persuaded that the ruling in Ritchey was an unwarranted extension of what we said in Wilson, supra. Certainly, if the record establishes that the accused fully understood and knew of his rights, both to appeal and to the assistance of counsel in connection therewith, he may effectively waive these rights even though he has not been explicitly informed thereof either by the court or his counsel. Hence I believe that the ruling in Wilson, supra, should be the position adhered to by this Court.
Finally, it is my view that we are not dealing with a "silent trial record" in the instant case and that there is at least sufficient evidence to show a prima facie waiver of the rights involved. Under such circumstances, the burden of proof in the hearing below should be upon Gilmer. See and compare, Commonwealth ex rel. Fink v. Rundle, 431 Pa. 264, 244 A.2d 648 (1968).
Mr. Justice JONES and Mr. Justice COHEN join in this opinion