Com. v. McClendon

• Decision Date: 08 April 1991
• Docket Number: Nos. 818,s. 818
• Citation: 589 A.2d 706,403 Pa.Super. 467
• Parties: COMMONWEALTH of Pennsylvania v. Jonathan James McCLENDON, Appellant. (Two Cases) Pittsburgh 1989 and 881 Pittsburgh 1989.
• Court: Pennsylvania Superior Court

Page 706

589 A.2d 706

403 Pa.Super. 467

COMMONWEALTH of Pennsylvania v. Jonathan James McCLENDON, Appellant. (Two Cases)

Nos. 818 Pittsburgh 1989 and 881 Pittsburgh 1989.

Superior Court of Pennsylvania.

Argued Dec. 18, 1990.

Filed April 8, 1991.

Carmela R.M. Presogna, Asst. Public Defender, Erie, for appellant.

William A. Dopierala, Asst. Dist. Atty., Erie, for Com., appellee.

Before CIRILLO, President Judge, and CAVANAUGH, WIEAND, OLSZEWSKI, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

WIEAND, Judge:

Jonathan James McClendon entered negotiated pleas of guilty to two separate robberies which had occurred at the Central Mall Branch of the Marine Bank in Erie, Pennsylvania. ¹ In exchange for his pleas of guilty, the prosecuting attorney agreed that, at the time of sentencing, he would tell the court that the Commonwealth would have no objection to the imposition of concurrent sentences. When McClendon was sentenced, the prosecuting attorney explained to the court that the Commonwealth had no objection to concurrent sentences. The sentencing court, nevertheless, imposed consecutive terms of imprisonment. ² Subsequent motions to withdraw the pleas of guilty and to reduce the sentences were denied, and McClendon appealed. ³ He contends that he should have been entitled to withdraw his pleas of guilty because the trial court imposed consecutive sentences. He also contends that the sentences imposed were manifestly excessive.

"In order to permit the withdrawal of a guilty plea after sentence has been entered, there must be a showing of prejudice that results in a manifest injustice to the defendant." Commonwealth v. Vance, 376 Pa.Super. 493, 499, 546 A.2d 632, 635 (1988). See also: Commonwealth v. Schultz, 505 Pa. 188, 191, 477 A.2d 1328, 1329-1330 (1984); Commonwealth v. Muller, 334 Pa.Super. 228, 233-234, 482 A.2d 1307, 1310 (1984). "To prove manifest injustice, a criminal defendant must show that his plea was involuntary or was entered without knowledge of the charge." Commonwealth v. Fenton, 388 Pa.Super. 538, 542, 566 A.2d 260, 262 (1989). See also: Commonwealth v. Jones, 389 Pa.Super. 159, 162, 566 A.2d 893, 895 (1989); Commonwealth v. Campbell, 309 Pa.Super. 214, 219, 455 A.2d 126, 128 (1983). However, "[o]nce a defendant has entered a plea of guilty, it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him." Commonwealth v. West, 336 Pa.Super. 180, 186, 485 A.2d 490, 493 (1984). See also: Commonwealth v. Phillips, 374 Pa.Super. 219, 222, 542 A.2d 575, 576 (1988); Commonwealth v. Brown, 242 Pa.Super. 240, 244, 363 A.2d 1249, 1251 (1976).

"Post-sentencing attempts to withdraw a guilty plea must sustain this more substantial burden [of demonstrating manifest injustice] because of the recognition that a plea withdrawal can be used as a sentence-testing device." Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982). See also: Commonwealth v. Starr, 450 Pa. 485, 489, 301 A.2d 592, 594 (1973); Commonwealth v. Vance, supra. "It is axiomatic that a disappointed expectation regarding a sentence does not constitute grounds for withdrawing a guilty plea." Commonwealth v. Owens, 321 Pa.Super. 122, 130, 467 A.2d 1159, 1163 (1983). See also: Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973); Commonwealth v. West, supra at 185, 485 A.2d at 493. "If a plea of guilty could be retracted with ease after sentencing, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe." Commonwealth v. Shaffer, supra.

Pursuant to Pa.R.Crim.P. 319(a), a trial judge "shall not accept [a guilty plea] unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record." Regarding the entry of a guilty plea, it has been said:

Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee assurance that guilty pleas are voluntarily and understandingly tendered. See: Pa.R.Crim.P. 319 and comment thereon. The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is obliged to make a specific determination after extensive colloquy on the record that a plea is voluntarily and understandingly tendered. A guilty plea colloquy must include inquiry as to whether (1) the defendant understood the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has the right to a jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreement. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). Inquiry into these six areas is mandatory in every guilty plea colloquy. Commonwealth v. Glaze, 366 Pa.Super. 517, 531 A.2d 796 (1987); Commonwealth v. Moore, 365 Pa.Super. 65, 528 A.2d 1364 (1987). See also: Commonwealth v. Johnson, 355 Pa.Super. 123, 512 A.2d 1242 (1986).

Commonwealth v. Cole, 387 Pa.Super. 328, 335-336, 564 A.2d 203, 206-207 (1989). See also: Commonwealth v. Alston, 387 Pa.Super. 393, 397, 564 A.2d 235, 237 (1989); Commonwealth v. Cortino, 387 Pa.Super. 210, 215-216, 563 A.2d 1259, 1261-1262 (1989).

In the instant case, a full and complete colloquy was conducted and included these six mandatory inquiries. During the colloquy, appellant affirmatively acknowledged that he understood the rights which he was surrendering by pleading guilty and that his decision to plead guilty was a voluntary one. On appeal, he contends nevertheless that he had an absolute right to withdraw his guilty plea pursuant to Pa.R.Crim.P. 319(b)(3) because the trial court refused to accept the plea agreement. We reject this contention.

Pa.R.Crim.P. 319(b)(3) provides as follows:

(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 interpreting this rule, several Superior Court decisions held that "a sentence recommendation is among the 'terms' of a plea bargain, and the Rule provides that if the judge cannot concur in the bargain, he must afford the defendant an opportunity to withdraw." Commonwealth v. Sutherland, 234 Pa.Super. 520, 525, 340 A.2d 582, 584-585 (1975). See: Commonwealth v. Fazenbaker, 248 Pa.Super. 433, 375 A.2d 175 (1977); Commonwealth v. Wilson, 234 Pa.Super. 7, 335 A.2d 777 (1975); Commonwealth v. Barrett, 223 Pa.Super. 163, 299 A.2d 30 (1972). See also: Commonwealth v. Coles, 365 Pa.Super. 562, 565-566, 530 A.2d 453, 455 (1987). In Commonwealth v. Bennett, 512 Pa. 525, 532, 517 A.2d 1248, 1251-1252 (1986), the Supreme Court, by dictum, interpreted Rule 319(b)(3) in a similar manner. This interpretation of the rule was "premised on the idea that it would be unfair to accept a guilty plea which was induced in part by a recommendation of a lenient sentence and then impose a greater sentence." Commonwealth v. Sutherland, supra at 524, 340 A.2d at 584.

More recent decisions, however, have made it quite clear that plea agreements by which the Commonwealth has agreed to make nonbinding sentencing recommendations will not give rise to a per se right to withdraw the plea if the sentencing court does not accept the recommendation. Thus, in Commonwealth v. Osteen, 381 Pa.Super. 120, 552 A.2d 1124 (1989), the sentencing court's rejection of the prosecution's expressly nonbinding recommendation of probation and the imposition of a sentence of imprisonment was held not to violate the terms of the plea agreement. The Court reasoned as follows:

The ... plea bargain created no expectation whatsoever as to what sentence would be imposed. By its clear and fully explained terms, the plea bargain was expressly limited to what sentence the prosecutor would recommend, not what sentence the court would impose. Thus, the prosecutor completely fulfilled his part of the plea bargain at sentencing by offering the recommendation as agreed.... To have permitted appellant to withdraw his no contest plea based upon the trial court's rejection of the prosecution's recommendation, would have ignored the clear limits of the plea agreement and would have permitted precisely the kind of "sentence-testing" which our Supreme Court expressly condemned in Shaffer, 446 A.2d at 592-93; see also Commonwealth v. Herberg, supra, 452 A.2d at 537. [(1982) ]. Consequently, we reject entirely appellant's suggestion that his plea bargain was broken.

Id. 381 Pa.Super. at 127-128, 552 A.2d at 1128. From this decision it seems clear that where the terms of a plea agreement state specifically that the court is not to be bound by the Commonwealth's sentencing recommendation, the defendant acquires no right to have his plea withdrawn if a more severe sentence is imposed.

The same result was achieved in Commonwealth v. Porreca, 389 Pa.Super. 553, 567 A.2d 1044 (1989). There, the sentencing court had rejected the Commonwealth's nonbinding recommendation for a maximum sentence of county prison time and, instead, imposed a sentence of imprisonment of two to six years in a state prison. The defendant argued that the sentencing court's rejection of the Commonwealth's recommended sentence created an absolute right to withdraw his plea pursuant to Pa.R.Crim.P. 319(b)(3). In rejecting this argument, the Superior Court said:

In Osteen, this Court emphasized that the limited nature of the plea agreement was clearly and unequivocally expressed to the defendant, who nonetheless opted to accept even the limited plea agreement as a true bargain.

The limits of the plea agreement finally approved in ...