Commonwealth v. Clark
Commonwealth v. Clark
Opinion of the Court
Elmer Wilson Clark, on August 13, 1981, entered pleas of guilty to forgery, criminal attempt to cash a forged check and escape. He was sentenced to serve a term of imprisonment for not less than six years nor more than fourteen years. On January 19, 1983, Clark filed a P.C.H.A. petition in which he alleged that he had been denied his right of allocution. The petition was twice amended to include averments (1) that the sentencing court had failed to state adequate reasons for the sentence; (2) that the guilty plea court had failed to explain the elements of the crime of escape; and (3) that prior counsel had been ineffective for failing to raise these issues. Counsel was appointed to represent Clark, but the P.C.H.A. petition was denied without hearing. This appeal followed. We affirm.
The allocution issue was lacking in merit and did not require an evidentiary hearing. At sentencing, the court specifically asked Clark, “Is there anything else to be said?” to which Clark replied, “No, sir.” This constituted full compliance with Pa.R.Crim.P. 1405(a). We have also examined the reasons for the sentence which the court imposed and find them adequate. Counsel was not ineffective for failing to pursue this issue in a motion to modify sentence.
It is correct, of course, that “a guilty plea is valid only if the defendant understands the nature of the charges brought against him.” Commonwealth v. Campbell, 309 Pa.Super. 214, 218, 455 A.2d 126, 128 (1983). However,
*369 an esoteric explanation of the elements of the crime is not necessarily a prerequisite to constitutional validity of a guilty plea in all circumstances. The “true constitutional imperative is that the defendant receive ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ ” [Commonwealth v. Shaffer, 498 Pa. 342, 350, 446 A.2d 591, 595 (1982)], quoting Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108, 114 (1976). Whether notice has been adequately imparted may be determined from the totality of the circumstances attendant upon the plea, Shaffer [446 A.2d] at 595, see also Commonwealth v. Morales, 452 Pa. 53, 305 A.2d 11 (1973), Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968).
Commonwealth v. Martinez, 499 Pa. 417, 420, 453 A.2d 940, 942 (1982).
In the instant case, the guilty plea colloquy with respect to escape was as follows:
Q. And in the third case, No. 257 Criminal 1981, in which you are charged with Escape, a Felony of the third degree; did you Escape from the Somerset County Jail while you were imprisoned on that charge?
A. Yes, sir.
Q. Tell me how you escaped.
A. Well, I climbed up over the fense [sic] and down over the wall.
Q. From the roof?
A. Yes, sir.
Q. Did you have any authority to leave?
A. No, sir.
Q. Were you imprisoned there on this charge?
A. Yes, sir.
Q. Well, that is the other check charges.
A. Yes.
*370 Q. Well, that’s a Felony of the third degree, and can also carry with it a possible seven year prison sentence or fine or both. (N.T. 8/13/81, at 6-7).
The foregoing colloquy was adequate to impart to appellant that he was entering a plea of guilty to an escape from the Somerset County Jail because he had left without authority while subject to imprisonment on a charge of forgery. He had previously been told by the court, moreover, that the charge of forgery was a felony. In view of these instructions there were no additional elements of the crime of escape which remained to be explained. See: 18 Pa.C.S. § 5121. Moreover, the elements of the offense were straightforward and did not require further explanation in order to make them understandable. We conclude, therefore, that the colloquy accompanying appellant’s plea of guilty to escape was adequate. A challenge to the validity of the guilty plea on this basis would have been meritless. Counsel was not ineffective for failing to make such a challenge.
Clark argues for the first time in this appeal that the trial court lacked jurisdiction to sentence him for escape because an information charging that offense had not been filed against him.
Appellant’s present argument is that a trial court lacks jurisdiction to accept a guilty plea to a crime not charged by information or indictment. We disagree. To invoke the jurisdiction of the court to accept a plea of guilty for a criminal offense,
it is necessary that the Commonwealth confront the defendant with a formal and specific accusation of the crimes charged. This accusation enables the defendant to prepare any defenses available to him, and to protect himself against further prosecution for the same cause____
Commonwealth v. Little, 455 Pa. 163, 168-169, 314 A.2d 270, 273 (1974). In Little, the Supreme Court held that the requirement of “a formal and specific accusation” had been satisfied by an indictment returned by the grand jury and that the absence of a criminal complaint did not affect the subject-matter jurisdiction of the lower court.
Four years later, in Commonwealth v. Diaz, 477 Pa. 122, 383 A.2d 852 (1978), the Supreme Court again considered the necessity for “a formal and specific accusation” of the crimes charged. There, a defendant who had been charged with attempted rape, kidnapping, indecent assault and simple assault, waived a preliminary hearing, waived presentment to the grand jury, waived formal indictment and entered a plea of guilty to attempted rape. The remaining charges were nolle prossed, and the defendant was sentenced to probation for five years. Thereafter, he was indicted on the same charges. He moved to dismiss the charges, contending that his constitutional right to be free of double jeopardy was being violated. The Commonwealth argued that there could be no double jeopardy violation because the trial court, without an indictment, had lacked jurisdiction to accept the defendant’s guilty plea and impose sentence upon him.
In the case before us, [defendant] had formal notice of the charges against him. The complaint filed against [defendant] was not so broad in its allegations that the specific conduct allegedly committed by [defendant] was in doubt. The complaint was specific as to the date of the crime, identified the victim of the crime, and specifically described the acts alleged to have been done by [defendant] during the attempted rape. Moreover, the specific facts underlying the charge of attempted rape were formally placed on the record in the presence of the [defendant] and [defendant’s] counsel____
We conclude that the requirement of Little, that the accused be given a formal notice of the charges has been satisfied in this case. There is no question concerning the specific charges to which the appellant pleaded guilty and for which he was sentenced on April 13, 1974. The trial court was therefore not divested of subject matter jurisdiction by any lack of notice to the defendant of the crimes of which he stood accused.
Commonwealth v. Diaz, supra, 477 Pa. at 126-127, 383 A.2d at 854-855.
Appellant’s reliance on Commonwealth v. Komatowski, 347 Pa. 445, 32 A.2d 905 (1943) is misplaced. There, the defendant had been convicted by a jury “of a crime utterly unknown to the law.” Moreover, the Court observed by way of dictum, the verdict of the jury had not been responsive to the charge contained in the indictment. Under these circumstances, the Court held, the defendant’s motion in arrest of judgment should have been granted. Instead, the record showed, the trial court had sentenced the defendant for another crime of which he had not been convicted by the jury. This, the Supreme Court held, was error. This deci
In the instant case, as in Diaz, a criminal action for escape had been commenced against the defendant by the filing of a criminal complaint. That complaint contained averments which established with specificity the date and time of the escape, the prison facility where appellant had been confined at the time of his escape, and the names of the persons who had escaped with appellant. In order to enter a plea of guilty to this charge and dispose of all pending charges at one and the same time, appellant expressly waived the necessity for the prior filing of an information charging escape. During the guilty plea colloquy, he told the court exactly how the offense had been committed. Thus, appellant clearly had notice of and understood the charge of escape to which he was entering a plea of guilty. He had a full comprehension of the nature of the act for which he was being sentenced. This was “substantially equivalent” to an information and was sufficient to vest jurisdiction in the trial court to accept the guilty plea and impose sentence.
The order dismissing appellant’s P.C.H.A. petition is affirmed.
. Appellant also contends that there were reasons why the sentencing court would have granted his request for modification of the sentence if they had been presented to the court. There is no merit in this contention. The reasons now suggested by appellant were trivial and would not have warranted a reduced sentence.
. Although this issue was not previously raised, it has not been waived. "[A]n objection to lack of subject-matter jurisdiction can never be waived." Commonwealth v. Little, 455 Pa. 163, 168, 314 A.2d 270, 272 (1974).
Dissenting Opinion
dissenting:
I agree with the majority’s disposition of all issues except
No authority is needed to sustain the proposition that a defendant cannot be legally convicted of a crime neither charged in the indictment nor a necessary constituent of any crime so charged, but on those rare occasions when such a question has come before the appellate courts of this State they have consistently held as we hold in this case that such a conviction is a nullity.
Commonwealth v. Komatowski, 347 Pa. 445, 455-56, 32 A.2d 905, 910 (1943).
Since the time of Komatowski, almost all judicial districts in Pennsylvania, including the one involved in this case, have abandoned grand jury indictments and adopted infor-mations filed by the district attorney as the instrument for formally charging defendants with crimes. See Pa.Const., art. 1, § 10 (Supp. 1985); Pa.R.Crim.P. 225. The rule stated in Komatowski, however, is equally applicable to informa-tions and this court has held that a trial court lacks jurisdiction to convict a defendant of a crime not charged in the information. Commonwealth v. Speller, 311 Pa.Super.Ct. 569, 579, 458 A.2d 198, 203-04 (1983). We have also held that the court has no jurisdiction to accept defendant’s guilty plea to a crime not charged in the information. Commonwealth v. Longo, 269 Pa.Super.Ct. 502, 503-04, 410 A.2d 368, 369 (1979).
Since the defendant here pled guilty to escape, with which the district attorney had not charged him by information, the Longo case is directly on point, and the escape convic Although Komatowski involved a trial and Diaz involved a guilty plea, there is nothing in the Diaz opinion to suggest that the different result in that case was based on the fact that a guilty plea, rather than a trial, was involved. Thus we seem to have two unanimous Supreme Court opinions contradicting each other. I believe the cases can only be reconciled by close analysis of the discussion in the Diaz opinion in the context of the facts of the case. The Diaz opinion quoted the trial court’s summary of the facts as follows: Commonwealth v. Diaz, supra, 477 Pa. at 124, 383 A.2d at 853. The Commonwealth later indicted defendant for the same charges, and defendant moved to dismiss the indictment on double jeopardy grounds. The Commonwealth argued that there was no double jeopardy violation in reprosecuting defendant on the same charges, because the trial court had not had jurisdiction to accept defendant’s guilty plea, since there was no indictment at the time the guilty plea had been accepted. The Supreme Court rejected this argument, discussing the issue as follows: Commonwealth v. Diaz, supra, 477 Pa. at 124-25, 383 A.2d at 854. The opinion in Diaz went on to determine that the formal notice requirement had been satisfied without an indictment When read only in the context of the single sentence from Fagan quoted in Diaz, the phrase “express and unequivocal consent” might be interpreted to mean consent to the jurisdiction of the court, but such an interpretation would be inconsistent with the statement Diaz had just quoted from Little, that there could be no waiver “even if the defendant voluntarily submits to the jurisdiction of the court.” When the phrase “express and unequivocal consent” is read in the context of the full opinion in Fagan, however, it becomes clear that what appears to be a vague and open-ended expression was intended to have a quite specific meaning. It refers to a procedure under the Act of April 15, 1907, P.L. 62, § 1, 19 P.S. § 241, whereby a defendant could waive grand jury action of an indictment by endorsing the waiver on a bill of indictment prepared by the Commonwealth. It was only action by the grand jury that was waived by the procedure under the Act of 1907. There still had to be a bill of indictment, an instrument by which the district attorney formally charged the defendant with a specific crime or crimes, as a basis for the jurisdiction of the court. See Commonwealth ex rel. Fagan v. Francies, supra, 53 Pa.Super.Ct. at 290. This remained true when the Act of 1907 was supplanted by an essentially similar procedure in Rule of Criminal Procedure 215, adopted by the Supreme Court in 1964. From this close reading of the entire discussion in the Supreme Court’s opinion in Diaz, it is possible to glean the essential holding that the specific facts of Diaz represented a case of substantial compliance with Rule of Criminal Procedure 215. While the opinion is not explicit concerning this or any other rationale, . Our Supreme Court might well take this case to clarify this issue, since it is one of great technical difficulty, and involves interpretation of the court’s own apparently conflicting opinions.
. Like the Komatowski case, Commonwealth v. Lee, supra, appears to contradict Diaz, since Lee cites Komatowski for the following proposition: "One cannot be convicted or sentenced for an indictable offense unless the grand jury has approved an indictment covering that offense.” What makes this particularly astonishing is that the Lee and Diaz opinions were written by the same author. Further compounding the confusion is the fact that only a year after Diaz, which superficially seems to hold that even a jurisdictional issue is waivable, the author of Diaz argued in a lone dissent that even a nonjurisdic-tional issue should not be waivable. Commonwealth v. Montgomery, 485 Pa. 110, 115, 401 A.2d 318, 320 (1979) (dissenting opinion).
. The quotation from the Municipal Court transcript is preceded by a brief reference to the sufficiency of the criminal complaint, but there is no indication that a complaint alone would be sufficient to confer criminal jurisdiction. Commonwealth v. Little, supra, 455 Pa. at 169, 314 A.2d at 273, held that the absence of a complaint did not deprive the court of criminal jurisdiction, which was conferred by the indictment. It would seem to follow from the reasoning of Little that something as insignificant to the jurisdictional issue as a criminal complaint could not by itself substitute for something as important as the indictment. Since Diaz purported to be consistent with Little, the brief mention of the criminal complaint in Diaz should be interpreted as simply one factor the Court took into consideration in holding that under all the circumstances, the unusual procedure followed by the Commonwealth amounted to the substantial equivalent of filing a bill of indictment under Rule of Criminal Procedure 215.
. According to the trial court’s statement of facts, which the Supreme Court quoted, “The defendant knowingly and intelligently waived the preliminary hearing, presentment to the Grand Jury and indictment, and entered a plea of guilty on the Municipal Court transcript to the charge of Attempted Rape.” Commonwealth v. Diaz, supra, 477 Pa. at 124, 383 A.2d at 853.
. It is not clear why the Supreme Court’s opinion fails to mention Rule 215 explicitly, since the Superior Court, whose judgment was reversed by the Supreme Court, had discussed the rule in holding that an indictment or a bill of indictment was necessary to the court’s . An alternative route by which the Diaz result could have been justified would have been to distinguish Diaz from Komatowski and its progeny, in that the Komatowski type of case involves a defendant who claims the court had no jurisdiction to try him unless the attorney for the Commonwealth files a formal charge, while Diaz involved a defendant who was being prosecuted for the second time on the same charges, and the Commonwealth opposed the defendant’s double jeopardy claim on the ground that the court had no jurisdiction over the first set of charges, which were void. The Diaz Court could simply have held that the whole question of jurisdiction over the first set of charges, along with the "void — voidable” distinction, has no relevance in the double jeopardy context. In effect, the Commonwealth would be estopped from disclaiming the validity of the original set of charges it had brought. The United States Supreme Court had at least left the door open to this approach in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), a case cited by the Pennsylvania Supreme Court in Diaz, 477 Pa. at 124, 383 A.2d at 854. In Benton, the U.S. Supreme Court called the government’s argument that the defective first indictment involved in that case was void "a bit strange,” 305 U.S. at 796, 89 S.Ct. at 2063, but did not go so far as to hold that the "void-voidable” distinction should be eliminated entirely in the double jeopardy context, as it was unnecessary in that case, since under Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), the defective first indictment was merely voidable. Benton v. Maryland, supra, 395 U.S. at 797, 89 S.Ct. at 2064. This would certainly have permitted the Pennsylvania Supreme Court to throw out the void-voidable distinction entirely in a case such as Diaz, where there was no indictment at all, rather than merely a defective one as in Benton, making it much more difficult in Diaz to characterize the original charges as merely voidable. The Diaz Court could also have bypassed federal law entirely by holding that double jeopardy claims under the Pennsylvania Constitution do not require that the first set of charges be voidable rather than absolutely void, although perhaps the Court did not do this because of the confusion surrounding the applicability of the double jeopardy clause . A criminal complaint was filed by the sheriff charging defendant with escape, but as previously discussed, a criminal complaint alone is insufficient. See note 3, supra.“On April 13, 1974, the defendant, Anibal Diaz, was arrested and charged with Attempted Rape, Kidnapping,
- If the trial court had subject matter jurisdiction, appellant was placed in jeopardy, within the meaning of the constitutional protections, on April 13, 1974, when he pleaded guilty in conjunction with the plea bargain and was sentenced for the crimes of which he was accused. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The prosecution argues that the trial court did not have subject matter jurisdiction because an indictment was necessary to invoke that court’s jurisdiction. The prosecution relies principally on Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974), and Commonwealth ex rel. Fagan v. Francies, 53 Pa.Super. 278 (1913). According to the prosecution, these cases hold that a court’s subject matter jurisdiction cannot be invoked absent an indictment. We do not accept the
“The right to formal notice of charges, guaranteed by the Sixth Amendment to the Federal Constitution and by Article I, Section 9 of the Pennsylvania Constitution, is so basic to the fairness of subsequent proceedings that it cannot be waived even if the defendant voluntarily submits to the jurisdiction of the court. Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927); Commonwealth ex rel. Fagan v. Francies, 53 Pa.Super. 278 (1913).” (Emphasis added.) 455 Pa. at 168-169, 314 A.2d at 273.
We further said in Little, supra:
“In the case before us, the requirement of notice to the defendant is fully satisfied by the indictment returned by the grand jury. Id. 455 Pa. at 169, 314 A.2d at 273.
The prosecution misreads Little. Little said that there must be a “formal notice of charges,” and that “the requirement of notice ... is fully satisfied by the indictment.” Little did not say that an indictment was the only way to satisfy the requirement of formal notice.
Likewise, in Fagan, supra, cited in Little, the Superior Court said:
“The objection that the case was not certified into the oyer and terminer may be regarded as technical, but the objection that no court had power to impose the sentence, except upon an indictment, without the relator’s express and unequivocal consent, is not technical but substantial.” (Emphasis added.)
Fagan, like Little, was concerned with whether there had been a formal notice of charges. Had there been an “express and unequivocal consent” in Fagan, an indictment would have been dispensable.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee, v. Elmer Wilson CLARK, Appellant
- Cited By
- 9 cases
- Status
- Published