Commonwealth v. Scott

SPAETH, Judge,

concurring and dissenting:

Since the transcript of the guilty plea hearing on No. 64 September Term 1975 has not been included in the record filed with this court, we cannot decide the adequacy of the colloquy given pursuant to that plea, and therefore cannot decide the issue of counsel’s effectiveness. Accordingly, I join in that portion of the majority’s order that remands for the completion of the record with respect to No. 64 September Term 1975. However, I dissent from that portion of the majority’s order that holds that the guilty plea colloquy at No. 105 June Term 1975 was adequate and that counsel was therefore effective. Settled authority demonstrates that the colloquy was not adequate, and that counsel was ineffective in failing to ensure that it was adequate.

It is settled that the colloquy must include an inquiry into the defendant’s understanding of the charges to which he is pleading guilty. Pa.R.Crim.P., Rule 319 (Comment); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976); Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). In the course of this inquiry the lower court must explain in understandable terms the nature and elements of the offenses charged. Commonwealth v. Tabb, 477 Pa. 115, 383 A.2d 849 (1978). See also Commonwealth v. Stolle, 254 Pa.Super. 483, 386 A.2d 53 (1978). The record in this case contains no such explanation. In nevertheless holding the colloquy adequate, the majority relies on the following statements by appellant in his petition to plead guilty:

(3) I have received a copy of the indictment before being called upon to plead, and have read the indictment and discussed it with my attorney and fully understand every charge made against me in this case.
*483(4) I have told my attorney all the facts and surrounding circumstances as known to me concerning the matters mentioned in the indictment and believe that my attorney is fully informed as to all such matters. My attorney has since informed me and has counselled and advised with me at length as to the nature and cause of each accusation against me as set forth in the indictment and as to any possible defenses I might have in this case.

These conclusory statements do not satisfy the requirements of Rule 319. While counsel may conduct the guilty plea colloquy in the place of the trial judge, see Rule 319 (Comment); Commonwealth v. Ingram, supra, nevertheless, whether conducted by the judge or counsel, the explanation of the charges still must appear as part of the colloquy, for it is the colloquy itself that must objectively demonstrate that the nature and elements of the offenses charged have been both explained and understood. See Commonwealth v. Buhl, 262 Pa.Super. 178, 182 n. 2, 396 A.2d 704, 706 n. 2 (1978) (“record must establish, prima facie, that the accused fully understood the consequences of his pleading guilty”); Commonwealth v. Blackwell, 258 Pa.Super. 121, 126, 392 A.2d 714, 716 (1978) (“on-the-record colloquy must objectively demonstrate that the elements of the crimes were explained”) (footnote omitted). We may not attempt to cure an inadequate colloquy by looking outside the colloquy itself, for to “supplement an inadequate record ... by proof of extrinsic facts would substantially undercut the prophylactic purposes which the colloquy on the record is supposed to achieve.” Commonwealth v. Buhl, supra, 262 Pa.Super. at 183 n. 2, 396 A.2d at 706 n. 2. See Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978).

Even if we were permitted to supplement an inadequate colloquy by proof of extrinsic facts, here there was no such proof. Neither the lower court nor the majority of this court can know what counsel told appellant. Certainly appellant is not competent to say that he was “fully informed” by counsel. For all the lower court or the majority of this court knows, he was misinformed, either because counsel told him something wrong, or neglected to tell him *484something he needed to know. This would hardly be the first case in which counsel was thus delinquent in fulfilling his obligations to his client.

In Commonwealth v. Hall, 253 Pa.Super. 27, 384 A.2d 959 (1978), in a situation similar to the one presented here, this court declined the Commonwealth’s invitation to infer that the defendant learned the elements of the offense during discussions with his counsel, stating that “[o]bviously the very terms of Rule 319(a) prohibit us from doing so.” Id., 253 Pa.Super. at 30 n. 4, 384 A.2d at 960 n. 4. Even more recently, in Commonwealth v. Davis, 267 Pa.Super. 118, 406 A.2d 547 (1979), the colloquy was held to have contained an insufficient explanation of the nature of the offenses even though counsel had specifically referred to the fact that he had previously discussed the charges with the defendant. Since there could be no reasonable basis for not ensuring that the colloquy was adequate, we held counsel ineffective. I can find no basis for the majority’s failure to do the same here.

As to No. 64 September Term 1975, I concur in the order remanding for completion of the record.

As to No. 105 June Term 1975, I should hold counsel ineffective and remand with instructions that appellant may withdraw his guilty pleas.