Com. v. Fralic
| Decision Date | 28 May 1993 |
| Citation | 425 Pa.Super. 581,625 A.2d 1249 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Donald R. FRALIC, Appellee. |
| Court | Pennsylvania Superior Court |
Brian P. Gottlieb, Deputy Atty. Gen., Harrisburg, for Com., appellant.
Victor H. Pribanic, McKeesport, for appellee.
Before CIRILLO, POPOVICH and HESTER, JJ.
This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Dauphin County which, inter alia, granted appellee's motion challenging validity of plea of nolo contendere and motion for leave to permit nunc pro tunc filing, permitted appellee to withdraw his plea and vacated appellee's judgment of sentence. Herein, the Commonwealth contends that the lower court did not have jurisdiction to allow the nunc pro tunc filing of the motion to withdraw the nolo contendere plea, to permit the plea to be withdrawn and to vacate appellee's sentence when more than thirty (30) days from the date of sentencing had elapsed. Further, the Commonwealth contends that, assuming the court had jurisdiction to entertain the motion, the lower court erred in granting the motion without first conducting a factual hearing to adjudicate the contested averments. We agree with the Commonwealth. Accordingly, we reverse the decision of the court below and remand for further proceedings in accordance with the provisions of this opinion.
The record reveals the following relevant factual and procedural history: Appellee was arrested and charged with fifteen (15) counts of theft by failure to make required disposition of funds received, 18 Pa.C.S.A. § 3927, and seven counts of filing false and fraudulent tax returns, 72 Pa.C.S.A. § 7268(a). The charges stemmed from appellee's failure to remit sales tax payments which he collected. Appellee entered into a plea agreement with the Commonwealth whereby he would enter a plea of nolo contendere to the charges and would make full restitution to the Commonwealth in the amount of $314,689.55. In exchange, the Commonwealth would not offer a sentencing recommendation and would stand mute as to the sentence imposed by the trial court. In addition, the written plea agreement provided that if appellee was dissatisfied for any reason with the sentence imposed, he would not be permitted to withdraw his plea.
On March 25, 1992, a hearing was held at which appellee entered his plea of nolo contendere. Appellee had completed an extensive written plea colloquy which he had reviewed with his attorney, Mr. Sanford Kelson, Esquire. During the hearing, the Commonwealth recited the facts which served as to basis of the criminal charges, and appellee acknowledged that those were the facts to which he was entering his plea. Attorney Kelson then explained to the court that he had discussed the case with appellee, and that, in his opinion, the facts could lead to a possible "not guilty" verdict. However, Attorney Kelson represented that appellee "wanted to do the right thing and plead guilty anyway." N.T., 3/25/92, pp. 7-8. Prior to the hearing, appellee had fully reimbursed the Commonwealth in the amount of $314,689.55.
Appellee then waived the pre-sentence report, and the court proceeded to sentencing. Attorney Kelson then extensively outlined appellee's personal history and highlighted numerous mitigating factors. Appellee also expressed remorse for his actions. The court then sentenced appellee to pay the costs of prosecution, to pay a fine of $10,000, and to undergo incarceration in county jail for a period of five (5) to twenty-three (23) months. Appellee was ordered to report to jail on April 16, 1992. The Commonwealth then explained to appellee that he had ten (10) days within which to file a motion for reconsideration of sentence and thirty (30) days within which to perfect an appeal on those limited grounds set forth in his plea agreement. N.T., 3/25/92, p. 17. Attorney Kelson also stated that he would explain those rights to appellee.
On April 6, 1992, within ten days of sentencing, appellee filed a motion for reconsideration of sentence, requesting a sentence of probation plus community service. However, the lower court denied the motion for reconsideration the following day. Shortly thereafter, appellee retained new counsel, Victor Pribanic, Esquire. On April 13, 1992, more than ten days after sentencing, Attorney Pribanic filed a "Motion Challenging the Validity of Plea of Nolo Contendere and Motion for Leave to Permit Nunc Pro Tunc Filing", a "Petition for Relief Pursuant to the Post Conviction Relief Act and Order of Court" and a "Motion for Bail Pending Disposition of Defendant's Motion Challenging Validity of Plea of Nolo Contendere." The Commonwealth answered the motions and the PCRA petition. A hearing solely on the bail motion was held on April 17, 1992, and, at the end of the hearing, the lower court granted appellee's bail request only.
Eventually, by order dated August 14, 1992, the trial court granted the motion for leave to permit nunc pro tunc filing to his motion challenging the validity of his plea. The court declared the plea "withdrawn" and vacated the sentence imposed. The court directed the case be listed for trial and continued bail. The lower court also declared the PCRA petition moot. This appeal by the Commonwealth followed.
In its Pa.R.App.R. 1925 opinion, the lower court contends it exercised "its inherent power to correct an illegal sentence or obvious and patent mistakes in its orders at any time." The court determined that appellee's nolo contendere plea was unlawful, and it felt it had jurisdiction to correct a manifest miscarriage of justice. In the alternative, if we determine the court was without jurisdiction to permit appellee to withdraw his plea, the lower court urges us to consider its action to be one of granting appellee's PCRA petition on the grounds that appellee's plea was unlawfully induced.
As a general rule, a trial court may not modify a final order once beyond the thirty-day statutory time limit set forth in 42 Pa.C.S.A. § 5505. Commonwealth v. Butler, 389 Pa.Super. 209, 210-13, 566 A.2d 1209, 1210-1211 (1989); Commonwealth v. Sheppard, 372...
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