Com. v. Boatwright

• Decision Date: 24 April 1991
• Citation: 404 Pa.Super. 75,590 A.2d 15
• Parties: COMMONWEALTH of Pennsylvania v. Albert C. BOATWRIGHT, Appellant.
• Court: Pennsylvania Superior Court

Page 15

590 A.2d 15

404 Pa.Super. 75

COMMONWEALTH of Pennsylvania v. Albert C. BOATWRIGHT, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 17, 1991.

Filed April 24, 1991.

Thomas Livingston, Pittsburgh, for appellant.

Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before ROWLEY, President Judge, and DEL SOLE and MONTGOMERY, JJ.

ROWLEY, President Judge:

In this timely appeal of Albert C. Boatwright from the judgment of sentence of four to ten years imprisonment that was imposed following his plea of nolo contendere to a charge of possession with intent to deliver cocaine, 35 P.S. 780-113(a)(30), the sole claim raised by appellant is that the trial court abused its discretion in denying his pre-sentence motion to withdraw his plea. As "fair and just" reasons for withdrawal of the plea, appellant points to 1) his ignorance, at the time the plea was entered, of 18 Pa.C.S. § 7508(c), which, given the circumstances of appellant's case, bars any possibility of treatment "in lieu of criminal punishment" under 35 P.S. § 780-118 ("Act 64"); and 2) his assertion of innocence. For the reasons set forth below, we affirm the judgment of sentence.

In order to understand appellant's claim, we must consider both the relevant statutes and the procedural history of the case. As the result of an incident on November 30, 1988, appellant was arrested and charged with two counts of aggravated assault, 18 Pa.C.S. § 2702(a)(1), possession of cocaine, 35 P.S. § 780-113(a)(16), possession of cocaine with intent to deliver, 35 P.S. § 780-113(a)(30), and two violations of the Uniform Firearms Act, 18 Pa.C.S. §§ 6105, 6106. The aggravated assault charges were eventually dismissed. On November 27, 1989, appellant filed a pre-trial request for treatment under Act 64, which provides in pertinent part as follows:

(a) If a person charged with a nonviolent crime claims to be drug dependent or a drug abuser and prior to trial he requests appropriate treatment ... in lieu of criminal prosecution, a physician experienced or trained in the field of drug dependency or drug abuse shall be appointed by the court to examine, if necessary, and to review the accused's record and advise the government attorney, the accused and the court in writing setting forth that for the treatment and rehabilitation of the accused it would be preferable for the criminal charges to be held in abeyance or withdrawn in order to institute treatment for drug dependence or for the criminal charges to be prosecuted. The government attorney shall exercise his discretion whether or not to accept the physician's recommendation.

35 P.S. § 780-118(a).

Appellant's request was considered at a guilty plea hearing held the following day. At the outset the following exchange took place among the court, the assistant district attorney, and defense counsel:

Defense Counsel: So where that leaves us is there are four remaining charges.

Court: All right.

Defense Counsel: One is possession of a firearm by a convicted felon, another is a possession of a firearm, either concealed or in a vehicle, and then there is possession of 5.9 grams of cocaine, plus possession with intent to deliver; and, in essence,--

Court: 5.9 grams under the mandatory provisions?

Defense Counsel: Yes, that is [sic]. I'm not exactly sure what that--I believe it's one year, one year minimum.

A.D.A.: But I think the guidelines call for much more than that, anyway, so.

Defense Counsel: I wasn't aware that there were mandatory provisions that applied.

A.D.A.: Like I say, the guidelines, themselves, provide for far more than that, anyways.

Court: Any offense occurring after July 7th, 1988--

Defense Counsel: 1988.

Court:--involving more than two grams, goes with the mandatory.

Defense Counsel: Okay.

N.T. at 3-4. Defense counsel then referred to the Act 64 request, which he explained as follows:

In essence, what my request would be is to have the Court rule on that request. If the ruling is such that Albert Boatwright does have a physician appointed to examine him, then we are prepared today to do a postponement and appear here scheduling a plea or further proceedings on Act 64; and by way of alternatives, if the Court does not grant the relief that's requested here, we are prepared to plead guilty to the charges as they stand in the Information without the aggravated assault charges.

N.T. at 9. The assistant district attorney expressed the belief that Act 64 was not appropriate in appellant's case. The court then observed that "I suppose I could find the same examination by merely having a behavior examination" (N.T. at 10). When defense counsel suggested that "Act 64 provides for alternative remedy after a plea of guilty or after a finding of guilt[; t]here is the availability of seeking the same provision," the court replied, "Sure" (N.T. at 11). The court noted, however, that a firearms violation and the offense of possession with intent to deliver, "coupled together, in my opinion, do not fall within the concept of non-violent crime ..." (N.T. at 13). The court then ruled as follows:

I'm not going to entertain the matter pre-trial. I will, however, assuming the Defendant enters a plea of guilty or is found guilty, have the Defendant examined by the Behavior Clinic post-verdict.

N.T. at 14. Defense counsel stated that "[w]e are prepared to plead guilty now" (N.T. at 14), and the court proceeded with the guilty plea colloquy. The court informed appellant that he faced a "maximum penalty [of] imprisonment for not less than five nor more than ten years" (N.T. at 17) on the possession with intent to deliver charge. Appellant acknowledged that he had truthfully completed a guilty plea colloquy form and that he had not been promised anything in exchange for his plea. When defense counsel explained that appellant wished to plead nolo contendere rather than guilty to the charge of possession with intent to deliver, the court questioned appellant as follows:

You understand that a plea of nolo contendere means that you do not contest the evidence that the Commonwealth is offering, that's simply all it means, you do not have a defense to it and you do not contest it; do you understand?

N.T. at 24; emphasis added. Appellant replied that he understood, and his pleas were accepted by the court. The following exchange subsequently took place:

Court: You want me to issue a pre-sentence report as well as a behavior report?

Defense Counsel: The provision of Act 64 is 780-118, Paragraph f, which provides: In lieu of pre-trial consideration and review post-verdict ¹ and I would request that as a part of deferring sentencing allowing a pre-sentence report to be ordered and, in the meantime, have that review conducted.

N.T. at 31. The court agreed to arrange for the Behavior Clinic or a physician to conduct the requested evaluation. There followed a discussion concerning bail, in the course of which the court noted that "as to the drug charge, there, the Defendant has a minimum mandatory sentence of one year which the Court must impose and I understand ... that the guidelines would indicate that the appropriate sentence should be far more significant than that" (N.T. at 38); there was no comment from appellant or his counsel. The court set January 23, 1990 as the sentencing date.

On December 22, 1989, appellant filed a motion to withdraw his plea of nolo contendere to the charge of possession with intent to deliver cocaine. He maintained that it had been his goal to obtain Act 64 treatment and/or a sentence of probation conditioned upon drug treatment and that it was not until the court, at the plea hearing, referred to the one-year mandatory minimum sentence that he and his counsel learned that 18 Pa.C.S. § 7508 required such a sentence. ² In addition,

it was undersigned counsel's impression that Act 64 would give the court the means to avoid the mandatory sentencing provision of 18 Pa.C.S. § 7508. It appears that § 7508--at least in some circumstances--forecloses an "Act 64" disposition.

Motion to Withdraw Plea at 2. With regard to appellant's circumstances, this statement is correct, as the following provision shows:

(c) Mandatory sentencing.--There shall be no authority in any court to impose on an offender to which this section is applicable a lesser sentence than provided for herein or to place the offender on probation, parole, work release or prerelease or to suspend sentence.... Disposition under section 17 [probation without verdict] or 18 [Act 64] of The Controlled Substance, Drug, Device and Cosmetic Act shall not be available to a defendant to which this section applies.

18 Pa.C.S. § 7508(c) (footnote omitted).

The trial court considered appellant's request at a hearing on January 31, 1990. The following exchange is pertinent:

Defense Counsel: ... In this case my concern is that the plea wasn't knowingly, voluntarily or intelligently made, because at the time of the plea Mr. Boatwright was not aware of his--

A.D.A.: Your Honor, may I facilitate the proceedings here? ... The guidelines are clearly in excess of the mandatory one year.

Court: They certainly are.

. . . . .

Court: My recollection is that the defendant was informed of the mandatory minimum by the Court.

Defense Counsel: No question, that's when he was informed, but at that stage it was midstream during a plea colloquy assessing the relative merits of--

Court: Had you discussed it, the guidelines?

Defense Counsel: Yes. So, in terms of the guidelines ... my position there is it's clear, ... the minimum exceeds one year by some significant point.

N.T. at 4-5. The court reached the following conclusion:

You sat down and explained to [appellant] what the guidelines were and what the range of sentences were, and the range of sentence in this case far exceeds whatever mandatory minimum there would be in the case. In fact, the bottom end of the mitigated range more than triples the minimum sentence. Based upon that...