Opinion
September 13, 1972.
December 11, 1972.
Criminal Law — Practice — Plea of guilty — Intelligence and voluntariness — Effectiveness of counsel — Understanding of right to appeal — Matter of credibility within determination of lower court.
1. In a proceeding under the Post Conviction Hearing Act, it was Held that the record clearly established that defendant's plea of guilty in chambers was intelligently and voluntarily given after extensive in-court inquiry establishing that he had been fully advised of his rights and was aware of the nature and consequences of a plea of guilty.
2. It was Held that the fact that defense counsel did not raise the issue of lack of formal extradition proceedings and did not request that the plea be taken in open court rather than in chambers did not, in the circumstances, establish ineffective assistance of counsel.
3. It was Held that the failure to take an appeal did not demonstrate ineffective assistance of counsel, in the circumstances, and that defendant's contention of lack of understanding as to the right of appeal was a matter of credibility within the determination of the court below.
Criminal Law — Sentence — Evidence of good conduct after sentencing.
4. Evidence as to defendant's good institutional conduct since sentencing may not be relied upon to declare unlawful the sentence as originally imposed.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 304, Oct. T., 1972, from order of Court of Common Pleas of Delaware County, March T., 1970, Nos. 901, 902 and 903, in case of Commonwealth of Pennsylvania v. Frederick Boone. Order affirmed.
Petition for post-conviction relief. Before REED, JR., J.
Order entered dismissing petition. Defendant appealed.
John M. Hickey and Hickey, List Coyne, for appellant.
Ralph B. D'Iorio, Assistant District Attorney, William R. Toal, Jr., First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Submitted September 13, 1972.
This is an appeal from the lower court's refusal of a Post Conviction Hearing Act petition. Our review of the record leads us to an affirmation of the refusal.
The record clearly establishes that appellant's plea of guilty in Chambers was intelligently and voluntarily given after extensive in-court inquiry establishing that he had been fully advised of his rights and was aware of the nature and consequences of a plea of guilty. The fact that defense counsel did not raise the issue of lack of formal extradition proceedings and did not request that the plea be taken in open court rather than in Chambers did not, under the circumstances of this case, establish ineffective assistance of counsel.
Nor did the failure to take an appeal demonstrate ineffective assistance of counsel. Appellant admitted of record that he had been advised of his right to appeal, and his contention of lack of understanding as to that right was a matter of credibility within the determination of the court below, with which determination we find no reason to interfere.
Furthermore, an appeal would have been of no value to the appellant since as we have already stated, he had entered an intelligent and voluntary guilty plea leaving only the question of the lawfulness of the imposed sentence.
To demonstrate the unlawfulness and excessiveness of the sentence, the appellant relies on evidence as to his good institutional conduct since sentencing. However admirable such conduct has been, the fact remains it cannot be used to declare unlawful the sentence as originally imposed. For this reason also, we find no merit in appellant's contention that his Petition for Reconsideration of his sentence would have been granted but for its late filing which resulted from his not having the assistance of counsel.
Order dismissing petition affirmed.