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2006 Pa. Super. 30

893 A.2d 758

Commonwealth v. Fowler

Superior Court of Pennsylvania

Decided February 15, 2006

Superior Court of Pennsylvania · decided 2006-02-15

Relies on Boykin v. Alabama · McCarthy v. United States · Commonwealth v. Willis

Good law ✅— No negative treatment on recordhow we know

Decided 2006-02-15

How this case has been cited

Cited by 11 later decisions — most recently February 2023

11 state decisions

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¶1CONCURRING OPINION BY

KLEIN, J.:

¶2¶ 1 I agree with a great deal of the majority opinion, but have a problem with a footnote in the case, in which it is indicated that under Commonwealth v. Morrison, 878 A.2d 102 (Pa.Super.2005), there is sufficient evidence by looking at the “totality of the circumstances” to show that Fowler was aware of the elements of the crime. Instead, I believe that at a PCRA hearing, new counsel should be appointed to layer an ineffectiveness claim against post-sentence motion counsel for waiving Fowler’s best arguments — that Fowler was never advised as to the elements of third-degree murder, and that to find malice, the defendant must admit that the killing was not in self-defense.

¶3¶ 2 I do agree with the following in the majority opinion:

¶41. The record of the post-sentence hearing is sufficient to sustain the holding that trial counsel was not ineffective in failing to advise Fowler that he could receive a 20-40 year sentence, since trial counsel can only give his or her best judgment and does not have a crystal ball. The post-sentence hearing judge cannot be faulted for believing trial counsel’s testimony and disbelieving Fowler’s.

¶52. The claim that Fowler was not advised of the elements of the crime was waived at the post-sentence hearing and now can only be presented at a PCRA hearing with new counsel and a layered ineffectiveness claim.

¶63. I agree that there is no abuse of discretion in the sentence of 20 to 40 years under the facts of this case, which is in the standard range. It is noted that while the plea was to third-degree murder, the case borders on first-degree murder.

¶7¶ 3 However, I believe that had new counsel at the post-sentence motion argued that the colloquy was defective, this well might have been sufficient to enable *768Fowler to withdraw his plea. Certainly, it is possible that the elements of third-degree murder were explained to Fowler by trial counsel. Likewise, trial counsel might have explained the possibility of and problems with a self-defense claim, so that under the totality of the circumstances this argument might not have merit. .But on the state of the record, we do not know for sure.

¶8¶ 4 For the reasons stated in my dissent in Morrison, I believe that Morrisonflies in the face of the Pennsylvania Supreme Court decision in Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977), which held that six areas of a guilty plea are mandatory for the judge to colloquy with the defendant. See also Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976). This Court has held that there is a need for 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).

¶9¶ 5 I do not find sufficient indication in this record that Fowler understood the nature of the charge here. The majority’s supposition that because Fowler signed a written colloquy indicating counsel had explained the elements to him does not fulfill this requirement. See Majority Opinion, at 764, n. 1.

¶10¶ 6 Willisheld mandatory the following six areas of inquiry during a guilty plea colloquy: 1) does defendant understand the nature of the charges; 2) is there a factual basis for the plea; 3) does defendant understand he or she has a right to a jury trial; 4) does defendant understand he or she is innocent until proven guilty; 5) is defendant aware of the possible range of sentences and/or fines; and 6) is defendant aware the judge is not bound by the terms of any plea agreement unless the judge accepts the agreement. In addition, the nature of the crime has been defined as describing the elements of the crime in understandable terms. See Commonwealth v. Brown, 269 Pa.Super. 498, 410 A.2d 366 (1979); see also Commonwealth v. Allen, supra(collecting cases). Although omission of any of the six lines of inquiry will not necessarily invalidate the plea so long as there exists sufficient indication that the defendant entered the plea knowingly and voluntarily, Commonwealth v. Johnson, 460 Pa. 169, 331 A.2d 473, 477 (1975), 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).

¶11¶ 7 The Comment to Rule 590 states:

In addition, nothing in the rule would preclude the use of a written colloquy that is read, completed and signed by the defendant. This written colloquy would have to be supplemented by some on-the-record oral examination. Its use, would not, of course, change any other requirements of law, including these rules, regarding the prerequisites of a valid guilty plea or plea of nolo conten-dere.

¶12Pa.R.Crim.P. 590 (Comment).

¶13¶ 8 While we are required to examine the totality of the circumstances to determine whether the plea was knowing and voluntary, Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984), this does not, in my opinion, abrogate the requirement that the six issues be addressed or there be a record to make it clear that the defendant was otherwise made aware of all *769six factors. Here, the elements of third-degree murder were never listed or explained in either the written colloquy or the oral colloquy. The written colloquy is a ten-page standard form and makes no mention of homicide or third-degree murder. The trial court’s entire review of the charge during the oral colloquy consists of the following:

MR. BEEMER (Commonwealth attorney): The Commonwealth has agreed for withdrawing the general count of criminal homicide, defendant is entering a plea to murder of the third degree. There is no agreement as to sentencing.
THE COURT: Very well... Is this your understanding of the plea agreement?
MS. CRIBBINS (defense attorney): Yes, it is.
THE COURT: Mr. Fowler, is this your understanding of the plea agreement?
THE DEFENDANT: Yes.
THE COURT: Very well. The charge is criminal homicide, I believe. Maximum penalty is 20 to 40 years for third-degree murder as well as $25,000 fíne.
MR. BEEMER: That’s correct, Your Honor.
THE COURT: Do you understand that, sir?
THE DEFENDANT: Yes, sir.
In fact, as I stated in Morrison, supra,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, “[Bjecause 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.”

¶14878 A.2d at 118, 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).

¶15¶ 9 Simply asking Fowler if he discussed with his attorney the elements of offenses charged is not enough. If this is the extent of it, we as a reviewing court have nothing on which to assess the quality of the explanations given by counsel and thereby base a determination of whether a plea was voluntarily or knowingly given. At least the trial judge should mention the six elements. Otherwise, there must be detailed facts to show that the defendant was otherwise made aware of them.

¶16¶ 10 At this point, we have no idea whether defendant was aware of the elements of the crime and knew what facts the Commonwealth could present to prove its case. The crime of “third-degree murder” is not self-defining. There should be a definition of malice understandable to a lay person, as well as a discussion of factors such as self-defense, which could rebut any malice. Certainly in this case there was enough evidence to sustain a conviction. At the same time, Fowler did claim self-defense to the police. He should have been told that to sustain a guilty plea, he would have to admit that the shooting was not in self-defense.

¶17¶ 11 There must be more than just a guess or conjecture to conclude that the “totality of the circumstances” indicates that a defendant intelligently waived his rights to go to trial. At this point, we can only speculate that Fowler understood the elements of third-degree murder, and particularly that he was admitting the shooting was not in self-defense.

¶18¶ 12 As a former trial judge who took guilty pleas thousands of times, I know that it is easy for a trial judge to spend an additional minute or two in a formal eolio-*770quy to make sure that the defendant understands at least the basic six factors, including the elements of the crime and the facts that the Commonwealth can prove at trial. Unfortunately, I perceive an emerging trend to speed through the colloquies, even in cases where there is the potential for a significant state sentence. Short-cutting the colloquy results in countless hours spent in reviewing ineffectiveness claims and plea challenges on appeal.

¶19¶ 13 It is also the responsibility of the prosecutor to assure that the judge covers all that is necessary. We on the appellate court should not be placed in the position of having to speculate about what the defendant was apprised of and what he understood. Likewise, judges in PCRA hearings should not be required to hear from trial counsel and rule on what trial counsel said in off-the-record conversations with the defendant.

¶20¶ 14 As noted, I recognize that this issue has been addressed in Morrison. However, I would hope that the Pennsylvania Supreme Court would consider this issue and the holding of Morrison. Hopefully, in the interim our trial judges and prosecutors will more carefully ensure that the minimum requirements of' a guilty plea colloquy are met and that a few minutes more are taken to make a record that a defendant pleading guilty actually knows what he or she is doing.

¶21¶ 15 Therefore, I concur.

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