Commonwealth v. Heeman

FLAHERTY, Justice,

concurring.

On December 2, 1976, appellant, Willis Heeman, was sentenced upon a purported “plea of guilty” to the charges of criminal solicitation to commit deviate sexual intercourse and corruption of minors. He was sentenced to two and one-half to five years on the charge of corrupting a minor and five to ten years on the charge of criminal solicitation to commit deviate sexual intercourse.

Appellant took an appeal to the Superior Court challenging the voluntariness of his “plea” and the adequacy of the colloquy. Relying on Commonwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140 (1975), Superior Court held appellant’s claims waived due to his failure to file a petition to withdraw his “guilty plea” and his failure to assert a valid explanation for not having done so. Judge Spaeth, joined by now President Judge Cercone, dissented, apparently on the theory that the proper disposition would be remand with leave to file a motion to withdraw the plea as though timely filed. Commonwealth v. Heeman, 260 Pa.Super. 79, 393 A.2d 1021 (1978). We granted allocatur.

A thorough review of the record in this case reveals that appellant never entered a guilty plea at all, much less one that was knowing and voluntary. Thus, the view of Mr. *282Justice Roberts leads to the incongruous result that appellant is permitted to file a motion to withdraw a plea when in fact no plea exists to be withdrawn.

The record contains the following discussion between the court and counsel:

[Defense Counsel]: If the court please, at this time we are going to change our plea to guilty....1
BY THE COURT: May I first see the information on it. In both these charges, Mr. Heeman, you are charged with on September 13th, 1976, with encouraging [the victim], age 13, in both instances with encouraging him to commit involuntary sexual deviate intercourse, and you were charged with corruption of a minor and criminal solicitation. Is there any doubt that these are the charges to *283which you want to plead guilty today, do you understand those charges?
[Defense Counsel]: Your Honor, I don’t know if he fully understands because he has no education at all, psychiatric evaluation which is the report that Mr. Thomas has. I don’t know if Mr. Heeman understands completely and fully what these charges really are. When he gets drunk, unfortunately he doesn’t remember that he even did these things.
BY THE COURT: We are going to approach it a different way. Before I accept a guilty plea, what I will do with as much tact as I possibly can, we will establish what offense was committed here and then the Court will make a determination of guilt and make some decision as to what we are going to do with Mr. Heeman that would be in everybody’s best interest. First of all, would you swear all the witnesses, please.

The court then proceeded to establish a factual basis for a plea. At no time during the proceeding did appellant articulate an intention to plead guilty or indicate any understanding of the proceeding or its consequences. The record does not show that appellant in any way even attempted to communicate with the court. In fact, appellant never spoke!

A voluntary plea of guilty to a criminal charge operates as a waiver of all the constitutional, statutory and judicially created safeguards afforded a defendant at trial. Commonwealth ex rel. West v. Myers, 423 Pa. 1, 222 A.2d 918 (1966). Out of just consideration for persons accused of crime, courts must determine and ensure that pleas of guilty are entered knowingly and with an understanding of the consequences.

A careful review of the record reveals that appellant did not, in fact, enter a plea, and, to the contrary, the record indicates that appellant lacked any understanding of the proceedings and their consequences. In short, appellant has been sentenced to a term of incarceration where he has been convicted neither by jury, judge, nor by his own admission of *284guilt. Not even the minimal requirements of due process have been met, and, on this record, appellant’s right to review of his claims has not been waived.2

I would, therefore, go further than the majority and reverse the judgment of sentence and grant a new trial.

LARSEN and KAUFFMAN, JJ., concur.

. At this point, the following discussion occurred, regarding appellant’s need for psychiatric evaluation and treatment.

Mr. Heeman has been incarcerated in jail before, placed on parole and I guess he got out in August and since then he has been picked up several times for the same charge. The police have been very helpful because they know what his problem is. At this time he was picked up he was brought here at everyone’s request, including his own.

Mr. Heeman was psychiatrically evaluated on April the 30th by Dr. Rick of the Mental Health Office and his impression was that he had personality disorder and addicted to alcoholism.

At that time Mr. Heeman had asked for help. For some reason there was a mix-up in communication. He was put in jail. He never did get any help. The doctor suggested at the time that he be placed in one of two places here in Luzerne County. Although he did ask for it he just didn’t get it because there was some mix-up.

What we are going to ask for today is that the Court direct that he be placed into an area where he can get a complete psychiatric evaluation with a follow-up program to help him. Otherwise he will be in jail forever. We all want to help Mr. Heeman, he wants this kind of help. I have discussed it with him, Mr. Thomas has represented him before from the Public Defenders’ Office, he has also discussed it with him. Miss Whalen spoke with him this morning. She also spoke with him in jail. He doesn’t remember speaking to her in jail. She’ll be glad to do whatever follow-up program is necessary when we get the federal money to help him. Whatever offices this Court can use to help Mr. Heeman we would certainly appreciate it. I know he would. We might as well have sent him to jail forever.

. The record indicates that appellant was not advised at the colloquy or at sentencing of his right to file a motion to withdraw his plea. Since we hold that there was neither a colloquy, nor a plea entered by appellant himself, there is no need to address the Commonwealth’s contention that the right to challenge the adequacy of a plea has been waived by not filing a motion for withdrawal of a plea.