Com. v. Stark

• Decision Date: 06 August 1997
• Citation: 698 A.2d 1327
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Thomas STARK, Appellant.
• Court: Pennsylvania Superior Court

Page 1327

698 A.2d 1327

COMMONWEALTH of Pennsylvania, Appellee, v. Thomas STARK, Appellant.

Superior Court of Pennsylvania.

Submitted May 19, 1997.

Filed Aug. 6, 1997.

Ned J. Nakles, Jr., Latrobe, for appellant.

John Wm. Peck, II, District Attorney, Greensburg, for Commonwealth, appellee.

Before POPOVICH, HUDOCK and HOFFMAN, JJ.

POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Westmoreland County which denied appellant's petition for relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541, et seq. Herein, appellant asks this court to expand the inquiry necessary to insure that an accused enters his guilty plea in a voluntary and understanding manner to include "any special circumstances affecting probation or release from incarceration." Upon review, we find that appellant's guilty plea was knowing and voluntary, despite the court's failure to advise appellant of the circumstances affecting parole and the changes in release rules of the Board of Probation and Parole after appellant was sentenced. Accordingly, we affirm the order of the PCRA court which denied appellant's requested relief.

Presently, appellant pleaded guilty on September 2, 1992, to charges of burglary and theft by unlawful taking. Pursuant to a plea agreement, appellant was sentenced to three year to six years of imprisonment. No further action was taken until November 17, 1995, when appellant filed a pro se writ of habeas corpus. Counsel was appointed, and this PCRA claim was brought. Both appellant's original writ of habeas corpus and his PCRA petition were filed in response to the denial of parole by the Pennsylvania Board of Probation and Parole, after the expiration of his minimum sentence. The PCRA court, in its opinion, noted:

The [appellant] presented testimony which showed that a number of changes [in the parole release rules of the Pennsylvania Board of Probation and Parole] occurred subsequent to the imposition of sentence and contends that these changes directly affect the period of time during which he will remain incarcerated. For example, the Board now more closely scrutinizes inmates who were convicted of crimes of violence before making a determination on their eligibility for release; a conviction for burglary is considered to fall under the category of crimes of violence. Furthermore, the number of signatories required for release of an inmate convicted of a "violent crime" was increased from two (2) to three (3) out of five possible Board members (N.T. 108). At least partly as a result of these changes, the release date on prisoner's minimum dates dropped from 80% in the years from 1992-1993 to 29% in the first quarter of 1996.

Undoubtedly, the disposition of the Parole Board has changed since the [appellant] entered his guilty plea; however, the [appellant] failed to show that, but for these changes, he would have been released on his minimum date.

Under the PCRA, a petitioner is eligible for relief if he pleads and proves by a preponderance of the evidence that he has been convicted of a crime for which he is currently serving a sentence and that his conviction has resulted from "a plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty." 42 Pa.C.S.A. §§ 9543(a)(1)(i), (2)(iii). ¹ The error must not have been waived, or must meet certain specified exceptions. 42 Pa.C.S.A. § 9543(a)(3). A issue is waived where the petitioner failed to raise it and it could have been raised before trial, at trial, on appeal, in a habeas corpus proceeding actually conducted or in a prior PCRA petition. 42 Pa.C.S.A. § 9544(b). Since appellant's denial of parole and the changes in the parole release rules occurred after appellant's right to a direct appeal had expired and this is appellant's first PCRA petition, we find that this issue is not waived.

We also conclude that appellant has raised a cognizable issue. Appellant contends that the PCRA court erred when it rejected his request to withdraw his guilty plea because it was not "knowingly and voluntarily" entered since appellant was not advised of the "special circumstances affecting probation or release from incarceration" and the parole release policy of the Pennsylvania Board of Probation and Parole was substantially changed after appellant's sentencing. 42 Pa.C.S.A. § 9543(a)(2)(iii); cf., Commonwealth v. Persinger, 532 Pa. 317, 320-22, 615 A.2d 1305, 1307 (1992) (claim that plea was involuntary due to court's failure to advise defendant of possibility of consecutive sentences was cognizable under PCRA).

Our analysis of appellant's argument reveals a two-part argument. First, appellant contends that he was not advised of the "special circumstances affecting parole" when he pleaded guilty. Second, he claims that he should be permitted to withdraw his plea because changes to the parole release rules after imposition of his sentence effectively increased his minimum sentence and frustrated the terms of his negotiated plea. In both arguments, appellant submits that his plea was unlawfully induced because he was not aware of the consequences of his plea, and manifest injustice requires this court to permit him to withdraw his plea and remand the case to the Westmoreland Court of Common Pleas so that the court can resentence appellant in a manner which would permit appellant to become eligible for parole at the particular time which he and the court anticipated at the time of sentencing.

In Persinger, supra, our Supreme court set forth the appropriate standard to be applied when reviewing a PCRA petition to withdraw one's guilty plea, as follows:

When considering a petition to withdraw a guilt plea submitted to a trial court after sentencing, ..., it is well-established that "a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified."

Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (emphasis omitted) (citations omitted).

Pennsylvania Rules of Criminal Procedure, Rule 319 governing guilty pleas, requires the court to conduct an on-the-record inquiry to determine that the plea is "voluntary and understandingly tendered." Pa.R.Crim.P. 319(a). In order to determine whether the plea is voluntary and understandingly entered the court must ask questions in six particular areas, including "Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?" Pa.R.Crim.P. 319 comment. Inquiry into these areas is mandatory, Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976), and failure to make the inquiry will require that the defendant be allowed to withdraw his or her guilty plea. See Commonwealth v. Kulp 476 Pa. 358, 382 A.2d 1209 (1978). The purpose of this rule is to insure that the defendant fully understands the consequences of his election to plead guilty. In Commonwealth v. Kulp, we stated that:

... the decision to plead guilty to a charge could not be accepted as being knowingly and intelligently entered without an assurance that the accused fully comprehended the maximum punishment that might be imposed for his conduct. This information is obviously an integral part of the knowledge that should be possessed by one who is called upon the make the difficult decision to surrender his right to trial and place himself at the mercy of the sentencing court. No civilized society could tolerate the waiver of such basic rights from one who was unaware of or misinformed as to such a critical fact.

476 Pa. 358, 361, 382 A.2d 1209, 1211 (1978)(emphasis added).

See also, Commonwealth v. Flood, 426 Pa.Super. 555, 566-69, 627 A.2d 1193, 1199 (1993), appeal denied 537 Pa. 617, 641 A.2d 583 (1994) citing Commonwealth v. Martin, 416 Pa.Super. 507, 611 A.2d 731 (1992) and Commonwealth v. Harris, 403 Pa.Super. 435, 589 A.2d 264 (1991).

In Persinger, supra, our Supreme Court applied the foregoing and ruled that an accused not only must be advised of the maximum sentence for each individual offense for which he is pleading guilty, but also must be advised that those sentences may be imposed consecutively. The accused must be advised of the "total possible aggregate sentence". Persinger, 615 A.2d at 1308. Since Persinger was not advised that his sentences may be imposed consecutively and what his total possible aggregate sentence could be, our high court found that his guilty plea was not voluntarily and understandingly entered. Thus, Persinger suffered a manifest injustice which required Persinger to be permitted to withdraw his guilty pleas. Persinger, 615 A.2d at 1308.

In reaching its decision, our Supreme Court cited the ABA Standards for Criminal Justice (2nd ed. 1980), Standard 14.14, relating to guilty pleas which, in relevant part, states:

(a) The court should not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally and in open court and determining that the defendant understands:

(1) the nature and elements of the offense to which the plea is offered;

(2) the maximum possible sentence on the charge, including that possible from consecutive sentences, and the mandatory minimum sentence, if any, on the charge, or of any special circumstances affecting probation or release from incarceration.

Herein, appellant invites this court to apply ABA Standards for Criminal Justice, Standard 14-1.4, to extend the court's duty to advise a defendant of his sentence to include "any special circumstances affecting probation or release from incarceration." Appellant argues that he should have been advised in regard to the possibility of parole after he has served his minimum period of incarceration. Since he was not made aware of the special circumstances affecting his chance for parole, he claims his plea unknowing and involuntary because those special circumstances, as a...