Summary
In Zanine we said, at page 363: "By pleading guilty appellant waived his right to challenge anything but the voluntariness of his plea and the legality of his sentence.
Summary of this case from Commonwealth v. BellOpinion
Submitted April 19, 1971.
October 12, 1971.
Criminal Law — Practice — Plea of guilty — Murder — Waiver.
1. A defendant who pleads guilty to a charge of murder generally and who is found guilty of murder in the second degree waives his right to challenge anything but the voluntariness of his plea and the legality of his sentence. [363]
Appeals — Criminal law — Compliance with Anders v. California — Appellate review.
2. Where counsel for a defendant concludes that no colorable basis for an appeal exists, petitions for withdrawal, and prepares a brief in conformity with Anders v. California, 386 U.S. 738, and a copy of counsel's brief is furnished the indigent and time allowed him to raise any points that he chooses, it is then for the appellate court to determine whether the case is wholly frivolous. [363]
Before BELL, C. J., JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.
Appeal, No. 391, Jan. T., 1970, from judgment of sentence of Court of Common Pleas of Montgomery County, Feb. T., 1969, No. 332, in case of Commonwealth of Pennsylvania v. Louis Francis Zanine. Judgment of sentence affirmed.
Indictment charging defendant with murder. Before SMILLIE, J., without a jury.
Plea of guilty by defendant and finding of guilty of murder in second degree; judgment of sentence entered. Defendant appealed.
Stephen G. Yusem, for appellant.
Steward J. Greenleaf, Assistant District Attorney, William T. Nicholas, Executive Assistant District Attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
On September 22, 1969, appellant Louis F. Zanine pleaded guilty to charges of murder generally in connection with the stabbing of his wife. The court determined he had committed murder in the second degree and sentenced him to undergo a term of imprisonment of not less than ten nor more than twenty years.
An appeal was taken on February 18, 1970. Appellant's private counsel filed a petition to withdraw from the case, which was granted on July 17, 1970. New counsel was appointed by the trial court on August 4, 1970. He likewise concluded no colorable basis for an appeal existed, and petitioned for withdrawal. A brief, prepared in conformity with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967) and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968) accompanied his petition and reviewed the record at length. A copy of this brief, as well as the brief of the district attorney and the transcript, have been in appellant's possession for approximately six months.
Under Anders, it is now for our Court to determine whether the case is wholly frivolous. See also Commonwealth v. Baker, supra. By pleading guilty appellant waived his right to challenge anything but the voluntariness of his plea and the legality of his sentence. See, e.g., Commonwealth v. Dillinger, 440 Pa. 336, 269 A.2d 505 (1970); Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967). Appellant's sentence was clearly legal, and thus our principal area of inquiry is the voluntariness of appellant's plea.
The pertinent language in Anders is as follows: "The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. . . . His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Id. at 744, 87 S.Ct. at 1400.
An extensive on-the-record colloquy occurred covering twenty pages of the notes of testimony, during which appellant was questioned by his own counsel, the district attorney, and the court concerning his decision to plead guilty. The requirements of due process and Rule 319 of the Pennsylvania Rules of Criminal Procedure were more than satisfied. Appellant was informed of the crime for which he was charged, the presumption of innocence, his right to have the Commonwealth prove its case without any testimony on his part, his right to trial by jury, his right of appeal, and the range of penalties. Appellant acknowledged he was aware of these rights but wished to plead guilty. He affirmed that no "deals" concerning leniency had been made and that he knew in any case the court would not be bound by such an arrangement.
In sum, the colloquy was a thorough examination of appellant, apprising him of the exact significance of his actions. He was twenty-nine years old, had attended high school, and was in possession of all his faculties. We accordingly hold this appeal to be wholly frivolous, and the judgment of sentence of the Court of Common Pleas of Montgomery County is affirmed.