Com. v. Coles
| Citation | 530 A.2d 453,365 Pa.Super. 562 |
| Decision Date | 24 August 1987 |
| Docket Number | No. 2262,2262 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. William COLES. Phila. 1986. |
| Court | Superior Court of Pennsylvania |
Ann Aschauer Osborne, Asst. Dist. Atty., Radnor, for Com., appellant.
Lisa M. Dinicola, Asst. Public Defender, Springfield, for appellee.
Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
The Commonwealth appeals from the denial of its motion to vacate appellee's sentence as modified following a hearing on appellee's motion to reconsider.
Appellee was charged with several theft offenses under three separate criminal informations; each was accompanied by a charge of conspiracy. On July 8, 1986, he entered voluntary guilty pleas to the crimes of criminal attempt-burglary, two charges of retail theft and two charges of criminal conspiracy. As part of the plea negotiations, the Commonwealth recommended a sentence of incarceration of not less than two and one-half years, less one day, to not more than five years, less one day, for each of the offenses with sentences to run concurrently. The trial judge imposed this recommended sentence on July 8, 1986.
On July 15, 1986, the appellee filed a motion to reconsider the sentence stating that he was sole support of his wife and daughter, had a job at Quality Market, was assisting the prison chaplain and was working in prison toward a G.E.D. Although appellee argued that his sentence was too harsh, the Commonwealth opposed any reduction of the sentence. Following a hearing on the matter on July 18, 1986, the court entered an Order on July 21, 1986 reducing appellee's sentence to a term of not less than two years nor more than five years, less one day. Subsequently, the Commonwealth filed a motion to vacate the Order and to reinstate the sentence pursuant to the negotiated plea. The trial court denied that motion on August 1, 1986, after hearing argument, and the appellee's sentence remained as modified. The Commonwealth filed this timely appeal.
The sole issue before us is whether the lower court was prevented from modifying the appellee's sentence since that sentence was a recommendation which was given the court by the district attorney and had resulted from plea bargaining negotiations.
As the trial judge correctly notes in his Opinion, "Pennsylvania has long recognized plea discussions or plea bargaining or plea negotiations as a just method of disposition in criminal cases." (Slip Op., McGovern, J., 2/12/87, p. 5.) See also Commonwealth v. Wilkins, 442 Pa. 524, 277 A.2d 341 (1971); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966). The Rules of Criminal Procedure, moreover, provide for plea agreements to be handled as follows:
Rule 319. Pleas and Plea Agreements
* * *
(b) Plea Agreements.
(1) The trial judge shall not participate in the plea negotiations preceding an agreement.
(2) When counsel for both sides have arrived at a plea agreement they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.
(3) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.
In Commonwealth v. Sutherland, 234 Pa.Super. 520, 340 A.2d 582 (1975), we acknowledged, "a sentence recommendation is among the 'terms' of a plea bargain, 1 and the Rule provides that if the judge cannot concur in the bargain, he must afford the defendant an opportunity to withdraw." Id. at 525, 340 A.2d at 584-85.
While we have consistently held that "[s]entencing is within the sound discretion of the court and absent an abuse of discretion will not be disturbed", Commonwealth v. Simpson, 353 Pa.Super. 474, 477, 510 A.2d 760, 761 (1986) (citing Commonwealth v. Arent, 352 Pa.Super. 520, 508 A.2d 596 (1986); Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985); Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978)), under the circumstances of this case, we find the action of the trial judge was an abuse of discretion.
In the case at hand the trial judge accepted the plea, including the recommended sentence, on July 8, 1986. Only ten days later he altered the sentence, in effect, unilaterally countermanding the agreement. For the following reasons this should not have been done without the consent of the Commonwealth. We have stated:
It is well settled that the terms of a plea bargain, which serves as an inducement to a defendant to plead guilty, must be binding on the prosecution. Therefore, the prosecutor has an affirmative duty to honor any and all such promises. If the Commonwealth violates a plea bargain, the defendant is entitled to the benefit of the bargain. (Citations omitted.)
Commonwealth v. Potosnak, 289 Pa.Super. 115, 121, 432 A.2d 1078, 1081 (1981).
The Commonwealth Court, in Commonwealth v. Williams, 333 Pa.Super. 77, 481 A.2d 1230 (1984), said "[t]he benefit of the bargain principle is ... easily--and fairly--applied in those situations where the Commonwealth promises to ask for a specific sentence and then in violation of that promise asks for a more severe sentence which is in fact given." Id. at 84, 481 A.2d at 1234.
In the matter at hand, the reverse situation occurred; the Commonwealth and the defendant bargained for a specified sentence and the defendant, at the plea hearing, after a full colloquy, knowingly and intelligently accepted the sentence. That colloquy is as follows:
Is it so that you have chosen to enter those pleas of guilty?
Has anybody promised you anything to get you to enter those pleas of guilty beyond what the District Attorney said? And let me, and before you answer that question, tell you what I understood the District Attorney to have said, and that is that he promises that he will recommend as a sentence in your case, that he will recommend a sentence of not less than two and a half years, less one day; nor more than five years, less one day; he will recommend that that time run concurrently on each of those offenses, and that it be spent in the Delaware County Prison. And he also indicated that he will be claiming restitution for the victim. Has anybody promised you anything beyond that to get you to plead guilty?
THE DEFENDANT:
No, nothing beyond that.
And is that your understanding of what your discussions have been between your lawyer and the District Attorney?
THE DEFENDANT:
Yes, sir.
Has anybody threatened you in anyway to get you to plead guilty?
THE DEFENDANT:
I wouldn't say threatened, just told me I'd be going to trial and my record, you know.
Well, insofar as you record is concerned, whether or not that record would be put before a jury, that's a question that has to be decided by the Trial Court. Do you understand that?
THE DEFENDANT:
Yes, sir. I understand that I'd be facin' a whole lot more time.
The things you've just raised, did you go over that with your lawyer?
THE DEFENDANT:
Yes, sir.
One week after the guilty pleas, appellee attempted to strip the Commonwealth of the "benefit of the bargain" when he petitioned the judge to unilaterally set aside the bargain. This was an inappropriate proceeding as by negotiating the sentence accepted by the court, the sentence could not be altered in the absence of mistake, misrepresentation or illegality. To hold otherwise would make a sham of the negotiated plea process and would give the defendant a second bite at his sentence, which we have frequently deplored in the context of withdrawal of a guilty plea. If the defendant in this case was dissatisfied with the sentencing recommendation, Pa.R.Crim.P. 319, supra, afforded him ample opportunity to reject the bargain prior to sentencing. The rule provides for the judge to conduct an inquiry of the defendant as to his understanding of the agreement and his willingness to accept its terms. If the judge is not satisfied that the defendant understands or accepts the terms, he may refuse to accept the plea and must afford defendant the opportunity to withdraw the plea.
Prior to acceptance by the court, a defendant is at liberty to withdraw his plea. After acceptance of the plea, courts have discretion to permit or direct a plea of guilty to be withdrawn at any time prior to sentencing (Pa.R.Crim.P. 320). 2 "Requests to withdraw guilty pleas prior to sentencing are to be liberally allowed for any 'fair and just' reason unless the Commonwealth will suffer 'substantial prejudice' thereby." Commonwealth v. Kioske, 337 Pa.Super. 593, 597, 487 A.2d 420, 422 (1985) (citing Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Dorian, 314 Pa.Super. 244, 460 A.2d 1121, aff'd, 503 Pa. 116, 468 A.2d 1091 (1983)). "Only upon a defendant's presentation of a 'fair and just' reason for withdrawal will a court then consider the prejudice to the Commonwealth resulting from the withdrawal." Kioske, supra 337 Pa.Super. at 598, 487 A.2d at 422.
Where withdrawal of a guilty plea is sought after a sentence has been imposed, however, "a showing of prejudice amounting to manifest injustice is required before withdrawal is properly justified." Williams, supra 333 Pa.Super. at 83, 481 A.2d at 1233. See also Commonwealth v. Johnson, 319 Pa.Super. 463, 466 A.2d 636 (1983). Further, "[a] plea of guilty usually constitutes a waiver of all defects and defenses except those concerning the jurisdiction of the court, legality of sentence, and validity of plea." Johnson, supra at 474, 466 A.2d at 642 (citing Commonwealth v. Moyer, 497 Pa. 643, 444...
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