Com. v. Kotz

• Decision Date: 02 January 1992
• Citation: 601 A.2d 811,411 Pa.Super. 319
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. David KOTZ, Appellant.
• Court: Pennsylvania Superior Court

Page 811

601 A.2d 811

411 Pa.Super. 319

COMMONWEALTH of Pennsylvania, Appellee, v. David KOTZ, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 21, 1991.

Filed Jan. 2, 1992.

Albert J. Flora, Jr., Wilkes-Barre, for appellant.

Jerome L. Cohen, Asst. Dist. Atty., Wilkes-Barre, for Com., appellee.

Before DEL SOLE, POPOVICH and CERCONE, JJ.

POPOVICH, Judge:

The defendant/appellant, David Kotz, seeks review of the March 18, 1991, order of the Court of Common Pleas of Luzerne County (per President Judge Patrick J. Toole) vacating, sua sponte, the judgment of sentence at Criminal Information No. 2712 of 1990. We reverse.

The facts of record reveal the following scenario: On October 24, 1990, the District Attorney of Luzerne County approved the issuance of Criminal Information No. 2712 of 1990 against the appellant charging him with aggravated assault, two counts of simple assault and recklessly endangering another person.

On January 4, 1991, the appellant pleaded guilty to one count of simple assault; all other charges were nol-prossed, with sentencing scheduled for March 1, 1991. Thereafter, by Criminal Information No. 2711 of 1990, the appellant was charged with two counts of simple assault and recklessly endangering another person. ¹ On January 17, 1991, the appellant pleaded guilty to one count of simple assault. Sentence was scheduled to coincide with the time set for the disposition of Criminal Information No. 2712 of 1990.

On the date set for sentencing, the court imposed a term of incarceration of 6 to 23 1/2 months at No. 2712 of 1990 and a consecutive sentence of 4 to 23 1/2 months imprisonment at Criminal Information No. 2711 of 1990. Following this, the appellant's motion to modify sentence at Criminal Information No. 2712 of 1990 was denied by order dated March 11, 1991.

On March 18, 1991, a hearing was held on the appellant's motion to withdraw his guilty plea at Criminal Information No. 2711 of 1990. At the hearing, when the appellant was asked why he sought to withdraw his plea, he responded that he was not guilty and because he was told, at the time of the plea, that he would receive probation for time served in the Luzerne County Correctional Facility in exchange for his plea of guilty. Counsel for the appellant admitted striking an agreement with the District Attorney's office with regard to Criminal Information at No. 2712 of 1990. The same occurred, except by different counsel, at Criminal Information No. 2711 of 1990, but, according to the assistant district attorney, in neither case did the plea call for any particular sentence, only that charges were to be nol-prossed. As is herein relevant, the following discourse transpired among the court, both counsel and the appellant:

THE COURT: Keep your mouth shut. It will do you a lot better, as far as I am concerned. You are like all your other friends. A plea was great while you thought it was going your way.

I am going to give you your chance. You go to trial on every single charge on this information and on the other. Put him on the list now, and I don't want anybody to give him any deals. Let him get convicted of all of them and let him get a state sentence. Good luck. The motion is granted. All charges are reinstated and directed to be placed on the trial list.

* * * * * *

I will tell you, the next time, you know, think about what you say.

THE DEFENDANT: Your Honor--

THE COURT: Save your breath, save your breath for the jury, not for me. The assault is a misdemeanor three.

THE DEFENDANT: That's the only plea--

THE COURT: No, it doesn't work that way.

THE DEFENDANT: I was already denied for the one.

THE COURT: You go to trial on everything, everything.

MR. YEAGER [Counsel for the defendant]: Just for the record, the petition was only on 2711. 2712 was a petition to modify.

THE COURT: You can't get both because they were sentenced together, right?

MR. YEAGER: He was sentenced--

THE COURT: Sentenced together, and that was the reason for the sentence, it was all worked out one time.

MR. YEAGER: Two separate times, Judge.

THE COURT: I will look at it in a second.

MRS. HALLENBACK: [Counsel for the Commonwealth]: He was sentenced on both on March 1.

MR. YEAGER: That's right.

* * * * * *

MR. YEAGER: My point was--

THE COURT: My point was that the sentence in both was all done at one time, it was negotiated that way.

MR. YEAGER: The pleas--just so you understand, maybe you do but I don't, the pleas were negotiated at two separate times.

THE COURT: The sentencings were all on the basis that 2711 and 2712 went together. They don't go together. He goes to trial on everything, everything. I am not here to play games and waste time. His negotiated plea on 2711 was 4 to 23 and a half months. That was only recommended.

MRS. HALLENBECK: We don't have an agreement on that.

MR. YEAGER: Sentenced to 6 to 23 and a half months.

THE COURT: That was from his guilty plea questionnaire.

THE DEFENDANT: To run concurrent with the first one. That's what Mr. Russin--

THE COURT: Did you write that out?

THE DEFENDANT: Yes.

THE COURT: Did it say to put down all the terms? That's not there. Have all the terms and conditions been set forth in your plea agreement? The answer is, yes.

THE DEFENDANT: That's what he told me in this room, if I pled guilty, he'll get it to run concurrent with 2712 and I get credit for four months on both of them.

THE COURT: Have a good time, Mr. Kotz. See if you can convince a jury.

MR. YEAGER: $10,000.00 on both or each?

THE DEFENDANT: I have already posted the bail.

THE COURT: There's no bail. Hey, Mr. Kotz, don't tell me your problems. I have my own. You want to withdraw your pleas, your bail was good only until the time you were sentenced and it was automatically finished.

THE DEFENDANT: I don't want to withdraw the 2712.

THE COURT: You beat both, because that's the basis the whole presentation was made to me when you were sentenced, and nobody is going to pick and choose, I got a good deal here, bad deal here. You are not guilty, you shouldn't have to worry, you probably won't be convicted.

THE DEFENDANT: I can't get out on bail?

THE COURT: $10,000.00 bail on each.

Motion to Withdraw Guilty Plea Transcript, March 18, 1991, at 4-8 (Emphasis added). By order dated March 18, 1991, the court granted the appellant's motion "to withdraw his plea. The [appellant wa]s to stand trial on all charges in 2711 and 2712 of 1990. [The appellant] to be placed on trial list." A timely appeal was taken from the March 18th order assailing the sua sponte withdrawal of the judgment of sentence issued at Criminal Information No. 2712 of 1990 by the court as an "engage[ment] in punitive measures designed to prohibit challenges to the validity of pleas." Appellant's Brief at 5. The Commonwealth and the court both attempt to justify the action taken on the ground that Criminal Informations at Nos. 2711 and 2712 of 1990 were "related" such that "if a plea in one was to be withdrawn that, under the circumstances, the plea to the other should be withdrawn as well and it was so directed." See Lower Court Opinion at 2; Commonwealth's Brief at 11.

Prior to inquiring into the merits of the appellant's complaint, we need to resolve the question of whether the order appealed is final for appellate review purposes.

Under Pa.R.App.P. 311, an aggrieved litigant may perfect an appeal from certain interlocutory orders as of right. As is herein relevant, the Rule provides that an appeal may be taken as of right from "an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge...." Pa.R.App.P. 311(a)(5).

We equate the appellant's objection to the withdrawal of his judgment of sentence and the possible necessitation of his presentment of a defense at trial, to be an assertion of the court's commission of an error of law in sua sponte requiring him to proceed to trial where the proper disposition called for the maintenance of the status quo as to the guilty plea entered at Criminal Information No. 2712. Id. Thus, the appellant's appeal of the March 18, 1991, order, albeit interlocutory, is properly before us for review in advance of the appellant having to endure the rigors of a trial. Cf. Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982) (Trial court's reconsideration of a guilty verdict at post-verdict motion stage and entering not guilty decision was appealable).

Although we have found no Pennsylvania decision which discusses a sua sponte vacation of a judgment of sentence and a guilty plea, nor have any of the parties or court below cited us any case law on the subject, we believe that the precepts associated with the solemnity of a guilty plea militate against affirmance of the lower court's actions. To-wit, when accepted and entered by a court, a plea of guilty is the equivalent of a conviction by the verdict of a jury. This is consistent with the enunciation of the United States Supreme Court in Kercheval v. United States, 274 U.S. 220, 223-224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), wherein it wrote on the subject:

A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. Such an application does not involve any application of guilt or innocence. The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the...