Commonwealth v. Morrison

DISSENTING OPINION BY

KLEIN, J.:

¶ 1 Because I believe the trial judge failed to meet the minimum requirements for a guilty plea colloquy, I would find that it was improper to dismiss Morrison’s PCRA petition without a hearing. Accordingly, I must respectfully dissent.

¶ 2 Some of the deficiencies might have been explained away if the PCRA court had held an evidentiary hearing. Perhaps at such a hearing, it could be established that the totality of the circumstances show Morrison did fully understand the nature of the charges and the factual basis to his plea. However, the colloquy on its face fails to pass muster in two significant respects:

1. There never was an explanation of the elements of the crimes, either in the oral colloquy or the written guilty plea colloquy; there is no indication that Morrison understood the nature of the charges.

2. Neither the court nor the Commonwealth adduced a sufficient factual basis underlying the charges on which the plea was based. Rather than indicate what evidence or witnesses would be *110 produced to establish the offenses, the Commonwealth merely issued a bald statement that the defendant and two other people went into a gas station, held a gun to the clerk, and took $99.

¶ 3 Pennsylvania law does not impose an onerous burden on trial judges to assure that a defendant is making a knowing and understanding decision when he gives up his constitutional rights and pleads guilty. Unfortunately, this case is just one of a number of instances in which the trial judge attempts to short-cut the process and, in doing so, fails to satisfy even the minimum standards for a guilty plea colloquy.

¶ 4 In this case, the colloquy comprises only five pages of notes of testimony, and probably took less than five minutes to conduct. Perhaps in some cases one could understand taking such short-cuts, but in most cases short-cuts lead to dead-ends.

¶ 5 Instantly, the crimes at issue were not summary offenses where the sentence would be short probation, but two felonies carrying extensive terms of incarceration. In fact, the robbery carried a mandatory minimum sentence of five years in prison. Moreover, Morrison was a laborer who completed only eight years of schooling, which would prompt one to think it necessary to explore his comprehension of the plea and underlying offenses more fully.

1. Failure to explain the elements of the crimes.

¶ 6 The Commonwealth posits that Morrison’s oral statements, that he had signed the written guilty plea colloquy after his attorney “went over” the colloquy questions and explained “his rights,” were enough to meet constitutional and legal safeguards. I respectfully disagree.

¶ 7 Pennsylvania Rule of Criminal Procedure 590 requires the court to conduct an on-the-record plea colloquy to ensure that a defendant’s plea is knowingly and voluntarily tendered. “The guilty plea colloquy must affirmatively demonstrate that the defendant understood what the plea connoted and its consequences.” Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa.Super.1998) (citation omitted). This determination is to be made by examining the totality of the circumstances surrounding the entry of the plea. Id.

¶ 8 At a minimum, the plea colloquy must inquire into the following six areas: “(1) the nature of the charges; (2) the factual basis of the plea; (3) the right to trial by jury; (4) the presumption of innocence; (5) the permissible range of sentences; and (6) the judge’s authority to depart from any recommended sentence.” Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.Super.2002 (citation omitted); Comment to Pa.R.Crim.P. 590.

¶ 9 The law has long emphasized the necessity of an on-the-record demonstration that the defendant understood the elements of the crimes. See Commonwealth v. Allen, 278 Pa.Super. 501 , 420 A.2d 653, 655 (1980) (collecting cases).

¶ 10 In this case, nowhere in the record has there been such a showing. There is absolutely nothing in the oral colloquy, or anywhere else, that explains the elements of either charge of robbery or conspiracy. While the trial judge stated that the Commonwealth had the burden of proving “each and every element of the crimes,” (N.T. 3/6/02, at 3), he never explained what those elements were.

¶ 11 The written colloquy is likewise silent regarding the elements of the crime. It merely lists the crimes of robbery and conspiracy. It is true that the generic facts as stated by the detective on the record, that Morrison held a gun to the clerk and took $99, might make out a robbery as a felony of the first degree, but *111 it might not. We do not know what it means to “hold a gun” to the clerk. Was it pointed at him? Were any threats made? Perhaps the clerk was put in fear of death or serious bodily injury, but maybe not. We don’t know. Morrison certainly has a right to know that to make out the crime of robbery, such fear has to be created.

¶ 12 The situation with respect to the conspiracy charge is afflicted with even greater constitutional and legal shortcomings. In this regard, the detective only said that the defendant “and two other actors went into Highway Oil, 441 East Main Street in Montville.” (N.T. 3/6/02, at 2). Maybe the other two “actors” went in to buy cigarettes and Morrison unilaterally decided to rob the clerk. Nowhere, either in the oral or written colloquy, is there the legal definition of conspiracy. How can a person with an eighth grade education be presumed to know the subtle differences between accomplice liability and conspiracy, or the legal requirement that there be some agreement or understanding that everyone is going to participate in the crime?

¶ 13 With respect to robbery, and even more certainly with respect to the conspiracy, the record is devoid of any showing that Morrison understood the elements of the crime or that anyone explained them to him.

¶ 14 As noted above, this is one of the six mandatory areas set forth by the Pennsylvania Supreme Court. See Commonwealth v. Willis, 471 Pa. 50 , 369 A.2d 1189 (1977); Commonwealth v. Dilbeck, 466 Pa. 543 , 353 A.2d 824 (1976). See also Commonwealth v. Ingram, 455 Pa. 198 , 316 A.2d 77 (1974).

¶ 15 In Willis , the Supreme Court unequivocally held, “Failure to satisfy these [six] minimal requirements will result in reversal.” 369 A.2d at 1190 . Willis is still good law; it has not been overruled. Con-cededly, Willis, Dilbeck, and Ingram have been scaled back over the years so that the totality of the circumstances — as opposed to solely the plea colloquy — should be considered in assessing whether a defendant knowingly and voluntarily entered his plea. See Commonwealth v. Shaffer, 498 Pa. 342 , 446 A.2d 591 (1982).

¶ 16 Nonetheless, the six minimum requirements remain indispensably significant because their coverage in the guilty plea process, or lack thereof, goes a long way in illustrating just how knowingly and voluntarily the plea was tendered. See, e.g., Commonwealth v. Flanagan, 578 Pa. 587 , 854 A.2d 489 (2004) (failure to satisfy one of six requirements, viewed in totality of circumstances which revealed a second error in the plea process, rendered guilty pleas involuntary and unknowing).

¶ 17 Indeed, the six requirements are so fundamental to the plea process that they are the primary focus of review in guilty plea validity claims. The absence of only one requirement carries considerable weight in our circumspect analysis, the absence of two even greater. We would be remiss.to overlook such fundamental deficiencies, particularly where the record does not elsewhere reveal supplemental information — actually comprehended by the accused — to fill the void.

¶ 18 Here, the record is bereft of any showing that the elements of either offense were explained to Morrison. These are not the lone deficiencies. The proffered factual basis was inadequate. Of course, the factual basis for the charges bears distinct import in the guilty plea process, and therefore merits weighty consideration.

2. Failure to state a factual basis for the plea.

¶ 19 Our Supreme Court, in Commonwealth v. Hines, 496 Pa. 555 , 437 A.2d 1180 (1981), stated:

*112 Because a guilty plea is not only an admission of conduct but also is an admission of all the elements of a formal criminal charge, and constitutes the waiver of constitutionally-guaranteed rights, the voluntariness of a guilty plea must be affirmatively established.

In order to satisfy the constitutional requirement that a valid guilty plea must stand as an “intelligent admission of guilt,” the law of this Commonwealth has long required that before a judge may properly accept a plea of guilty, a colloquy with the defendant must demonstrate that there is a factual basis for the plea and that the defendant understands the nature and elements of the offense charged.

437 A.2d at 1182 .

¶ 20 The circumstances in Commonwealth v. Belleman, 300 Pa.Super. 209 , 446 A.2d 304 (1982), are remarkably similar to the instant case. In Belleman , the defendant pled guilty to the charges of escape and indecent assault. The following factual basis was adduced during the colloquy:

[Ajfter being granted permission by Sterling Clements, a prison guard, to go to the bathroom at Seventh and'Lehman Streets while you were on work detail with the Lebanon County Prison, that you failed to return and that you left, you ran from Mr. Clements and did not come back to the prison?

446 A.2d at 306. The Belleman Court expressed dissatisfaction with the above factual basis, and delving deeper into the record, observed that the record was completely devoid of any description of the elements of the crime of escape. Id. at 307. The Court determined that these deficiencies produced an invalid plea, and accordingly, reversed and remanded for trial. Id. at 308 .

¶21 In the instant case, Morrison was not informed of the elements of either offense, and the adduced factual basis here is far more superficial than that in Belle-man. A fortiori, the deficiencies in the instant case warrant a new trial.

¶ 22 Our Supreme Court’s fairly recent decision in Commonwealth v. Flanagan, supra, is also instructive. There, the Supreme Court upheld this Court’s decision to allow Flanagan to withdraw his guilty plea based on the failure to accurately set forth the factual basis of the plea. In viewing the entire record, the Court spotted a second error — the trial judge had misstated a legal implication of accomplice liability. The Flanagan Court concluded that the plea court’s failure to adduce a factual basis, combined with the additional error, rendered the plea unknowing and involuntary. Id. at 500-501.

¶ 23 Instantly, the factual basis of the plea was virtually nonexistent. And like Flanagan , the instant case contains an additional, material error — i.e., the complete absence of statements explaining the elements of either charge.

¶ 24 However, it could be fairly argued that the errors plaguing the instant case are even greater than those in Flanagan . In Flanagan , the compounding error was that the accused was misinformed on one of the many relevant principles of law; whereas here, the accused was not informed as to any of them, for either offense. Thus, the errors surrounding Morrison’s guilty plea are certainly tantamount to those in Flanagan , upon which our Supreme Court recently granted relief. As such, I believe that the instant case should be remanded for trial, or at. the very least an evidentiary hearing on this issue.

¶ 25 Absent an evidentiary hearing, I believe it impossible to say that the “totality of the circumstances” shows that Morri *113 son knew the elements of robbery, much less the elements of conspiracy. And although the trial court adduced a basic factual scenario, namely, holding a gun to a clerk and taking $99, this is far different from explaining the factual basis for the plea. We have no idea how the Commonwealth would prove the charges. Could the clerk make an identification? Is the clerk willing to do so? Is a co-defendant willing to testify against Morrison? Maybe the police received an anonymous tip that said Morrison carried out the robbery, and the Commonwealth actually had no admissible evidence with which it could prove its case. The record, comprised of both the written and oral guilty plea colloquies, is totally silent on what evidence the Commonwealth had with which it could prove the charges. This is the normal way to establish a factual basis for a guilty plea.

¶ 26 Ordinarily, the response to a question such as the one posed by the trial judge in this case, “Do you want to summarize the facts?” includes the facts that would be introduced into evidence. One could expect the detective to say something like, “Harry Smith, the clerk in Highway Oil, 441 East Main Street, Mountville, PA, would testify that on September 26, 2001, three men came into his store. He would testify that Morrison put a gun to his head and demanded the money from the register, and he gave him $99. He called the police as soon as the three men left, and just a few minutes later was approached by an officer who took him to a location one block away where he identified Morrison and the other two men as those who robbed him. Officer Jones would testify that, he received a radio call of a robbery at the gas station, and by coincidence, he was at the same block when he saw Morrison and two other men running from the store. He caught and detained them. The clerk came to the scene from the store only a block away, and positively identified Morrison as the man with the gun.”

¶ 27 This is the recitation of admissible testimony that establishes a factual basis for the plea. Merely reciting what happened, much less in the most generic of terms, is not enough. If someone is going to waive his constitutional protections and give up the right to trial, he must do so intelligently, and to do so, he should know whether the Commonwealth has enough evidence to prove its case. 2 On its face, the record in this case is devoid of any such information.

¶ 28 Therefore, I believe that it violates Morrison’s state rights to refuse to allow him to withdraw his guilty plea without an evidentiary hearing to shed light on the circumstances of this case and supplement the record. I also believe that it violates his federal constitutional rights, and if we do not remand for an evidentiary hearing, the federal courts will. See Boykin, supra; McCarthy, supra; United States v. Young, 424 F.2d 1276 (3d. Cir.1970); Fed. R.Crim.P. 11.

¶ 29 At the conclusion of Flanagan, supra, our Supreme Court parted with a particularly apt admonition: “[W]e rein *114 force our expectation of compliance with the six, straightforward and relatively modest requirements that set the baseline for a valid guilty plea colloquy. See Pa. R.Crim.P. 590 (comment).”

¶ 30 Based on the foregoing, I respectfully dissent.

. In fact,

mere iteration of the elements of the crime is not enough. An 'explanation of the law in terms of the facts of the case is essential to a voluntary plea. As the Supreme Court of the United States has stated, “[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.”

Hines at 1184 , quoting Boykin v. Alabama, 395 U.S. 238 , 243 n. 5, 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 466 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969) (emphasis supplied).