(dissenting).
The facts found by the district court, with adequate basis in the record, included the following:
“At the Commencement of the trial, the judge appointed a Voluntary Defender to represent the relator, who already with three others, was being tried for seven (7) aggravated robberies. The Voluntary Defender promptly asked for a continuance so that he could, for the first time, interview the relator, and prepare a defense. The request was denied. The relator testified as to his innocence, but after the introduction of a confession containing his signature, and after a co-defendant changed his plea to guilty and implicated relator, relator likewise changed his plea to guilty.
“. . . the defender had no knowledge of the case prior to the day of trial, nor did he have a file containing the results of any investigation. He first learned the identity of the witnesses against relator and their relationship to the case when relator was confronted with their testimony, with no opportunity to prepare any worthwhile cross-examination, or study of the relator’s confession. There is no indication on the record that the Defender used the overnight recess to investigate the circumstances surrounding the confession given by the relator in order to determine its legality. Nor is there anything in the record that indicates that the Defender made any attempt to locate, investigate, and interview relator’s witnesses in order to judge whether a defense of mistaken identification might be available. Even if defense counsel had been willing and free to devote the entire overnight recess to relator’s case, it would have no doubt been impossible as a practical matter to locate the witnesses in such a short time. The record reveals that the Defender consulted with relator for five minutes (page 154 trial transcript) in order to secure a change of plea to guilty with no inquiry by the Court as to whether the plea was voluntary, without duress, promises of lenience or whether in fact relator understood the facts to which he was pleading guilty . . . .”
We are bound by these factual findings and I believe the majority do not challenge them.
Thus, the record establishes that defense counsel, appointed minutes before trial began, had no opportunity whatever to prepare for trial on indictments that charged the accused with several separate robberies and put him in jeopardy of sentences that could have aggregated some sixty years and ultimately did aggregate forty-five years. In these circumstances, if the trial had proceeded to guilty verdicts it cannot rationally be doubted that the convictions would have been obtained through procedure that denied the accused due process of law. The critical question here is whether the pleas of guilty, as tendered and accepted during the second day of the trial, warrant a different result.
I agree with the majority that, under the rule of the McMann trilogy1 *****the validity of a plea of guilty depends upon whether it was made voluntarily and knowingly. But the opinions in those cases also make it clear that an essential ingredient of a “knowing” or “intelligent” plea is that the accused shall have been informed and counseled by a lawyer who'was in position to give him effective assistance.2 Where counsel has had no opportunity whatever to investigate the case and, on the basis of his in*344quiry, to determine whether the accused has a defense to any or all of the three unrelated felonies of which he stands accused, counsel simply cannot provide the knowledgeable assistance which must precede and inform a “knowing” and “intelligent” plea. This conclusion is impressively supported by our decision in United States ex rel. Taylor v. Rundle, 1972, 456 F.2d 1245, where counsel who advised a guilty plea had been appointed less than two hours before trial.
In the present case, Judge Packel of the Pennsylvania Superior Court, dissenting from the denial of state post conviction relief, perceptively observed that the “appointment of counsel under the facts of the instant case, coupled with the order to proceed immediately to trial, amounted in effect to window dressing to complete the conviction”. 1972, 222 Pa.Super. 430, 433, 295 A.2d 187, 189. This observation was as valid for the time when counsel advised his client to pelad guilty as it was during the aborted trial. For however damaging the evidence at trial may have been, counsel, who was totally unprepared, was in no position to evaluate it, to cross-examine witnesses or to present any possible defense. In these circumstances, listening to the government’s case against the accused put counsel in no better position, perhaps even worse position, to advise his client objectively concerning a plea than he had been at the beginning of the trial. Yet, the government’s evidence, which could not have led to a valid guilty verdict because counsel had not had opportunity to test it or to investigate any aspect of the case, is now relied upon as enabling counsel to give his client adequately informed advice to plead guilty. In my view, the record amply supported the district court’s conclusion that in fact and in legal contemplation the guilty plea was invalid because counsel could not give the accused informed assistance in the making of that decision.
Finally, the principal opinion leaves me with the disquieting impression that unwillingness to affirm the district court’s grant of habeas corpus is bottomed upon the strong probability that the accused did in fact participate in the robberies to which his guilty pleas related. But the harmless error doctrine has no proper place where the right to effective assistance of counsel is the matter in issue. Mr. Justice Stewart’s concurring opinion in Chapman v. California, 1966, 386 U.S. 18, 42, 43, 87 S.Ct. 824, 837, 17 L.Ed.2d 705 clearly states the applicable constitutional concept:
“When a defendant has been denied counsel at trial we have refused to consider claims that this constitutional error might have been harmless. ‘The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.’ Glasser v. United States, 315 U.S. 60, 76 [62 S.Ct. 457, 86 L.Ed. 680]. That, indeed, was the whole point of Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799] . . . .”
I would affirm the judgment of the district court.
. Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; McMann v. Richardson, 1970, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Parker v. North Carolina, 1970, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785.
. McMann v. Richardson, supra, 397 U.S. at 770, 771, 90 S.Ct. 1441; Brady v. United States, supra, 397 U.S. at 748, n.6, 90 S.Ct. 1463.