HOFFMAN
Judge:
Appellant
contends that his pleas of guilty were not voluntarily and
knowingly entered. We agree and would, therefore, vacate the
judgment of sentence and grant appellant a trial.
On January 15, 1975, appellant entered pleas
of guilty to forgery [1] and indecent assault. [2] The court
sentenced appellant to a one to two year term of imprisonment
on the indecent charge and to a consecutive six to thirty-six
month term of imprisonment on the forgery charge. On March
17, 1977, appellant filed a petition to withdraw his guilty
pleas. [3] On April 27, 1977, the lower
court denied appellant's petition and this appeal
followed.
Appellant
alleges that the record does not establish that his guilty
pleas were voluntarily and knowingly entered because it does
not reflect the lower court's compliance with
Pa.R.Crim.P. 319, 19 P.S.Appendix. Rule 319(a) precludes
acceptance of a guilty plea unless a colloquy appears on the
record which establishes that the defendant's plea is
voluntarily and understandingly made. [4] The Comment to the
Rule states that at a minimum the judge must ask questions to
elicit the following information:
"(1)
Does the defendant understand the nature of the charges to
which he is pleading guilty?
"(2) Is
there a factual basis for the plea?
"(3)
Does the defendant understand that he has the right to trial
by jury?
"(4) Does the defendant understand that
he is presumed innocent until he is found guilty?
"(5) Is
the defendant aware of the permissible range of sentences
and/or fines for the offenses charged?
"(6) Is
the defendant aware that the judge is not bound by the terms
of any plea agreement tendered unless the judge accepts such
agreement?"
Moreover,
Pennsylvania courts have frequently stated that "in
order to insulate pleas from attack, a colloquy should be
conducted which satisfies the court that the defendant
understands the nature of the charges, his right to a jury
trial, the acts sufficient to constitute the offenses for
which he is charged and the permissible range of
sentences." Commonwealth ex rel. West v.
Rundle, 428 Pa. 102, 106, 237 A.2d 196, 198 (1968).
" Commonwealth v. Maddox, 450 Pa. 406, 407-408, 300 A.2d
503 (1973); Commonwealth v. Jackson, 450 Pa. 417,
299 A.2d 209 (1973). In Commonwealth v. Ingram, 455
Pa. 198, 203, 316 A.2d 77, 80 (1974), the Supreme Court held
that: "a valid guilty plea may not be accepted in the
absence of a demonstration of defendant's understanding
of the charges. . . . In order to demonstrate that a
defendant possesses such understanding, he certainly must be
told more than just that he has been charged with murder or
robbery, for example. While such terms clearly connote some
meaning to the layman, this meaning does not always embrace
the basic legal elements of the crime. If this were not the
case, there would be no need for instructions to a jury on
such points, for certainly, an average defendant cannot be
presumed to understand more than an average juror. Thus, for
an examination to demonstrate a defendant's understanding
of the charge, the record must disclose that the elements of
the crime or crimes charged were outlined in understandable
terms."
Recently,
in Commonwealth v. Willis, 471 Pa. 53, 369 A.2d 1190
(1977), the Supreme Court reiterated the holding in Ingram,
supra, and held that failure to satisfy the minimal
requirements as set forth in the cases and in the comment to
Pa.R.Crim.P. 319, will result in reversal.
In the instant case, the following colloquy
occurred at the guilty plea:
"MR.
BARO: (District Attorney) I believe the first count of
forgery on Bill of Indictment 869 of 1974.
"MR.
NOCH: (Public Defender) Right.
"MR.
BARO: And then on the Bill of Indictment 939 of 1974, I
believe the plea is to the second count, indecent assault.
"MR.
DOUGHERTY: (Chief Adult Probation Officer) That is correct.
"MR.
NOCH: Right.
"MR.
BARO: And upon entry of his guilty plea to the charges, the
District Attorney's Office would then move for the
dismissal of the second count, criminal conspiracy on Bill of
Indictment 869 of 1974 and also to the first count of
criminal attempt on Bill of Indictment No. 939 of 1974. Am I
correct on this, Mr. Dougherty."
"MR.
DOUGHERTY: That is correct, sir.
"THE
COURT: All right. Now, Mr. Stolle, do you understand what the
facts are in the two charges against you, forgery and
indecent assault?
"THE
DEFENDANT: Yes, sir.
"THE
COURT: And do you understand that you have the right to have
your guilt or innocence on these charges determined by a jury
trial, at which trial there is a presumption of innocence in
your favor with the burden on the Commonwealth to prove your
guilt beyond a reasonable doubt and at which trial you are
entitled to be represented by counsel and counsel free to you
if you cannot afford your own, do you understand that?
"THE
DEFENDANT: Yes, sir.
"THE
COURT: Further, do you understand that by pleading guilty,
you are admitting the correctness of the charges and that you
will be sentenced, the sentence could be as such as 10 years
imprisonment on forgery and two years on the indecent
assault, do you understand that, plus
substantial fines and imposition of court costs, do you
understand that?
"THE
DEFENDANT: Yes, sir.
"THE
COURT: Let me ask whether you are making these pleas of your
own free will?
"THE
DEFENDANT: What, sir?
"THE
COURT: Are you making these pleas of your own free will?
"THE
DEFENDANT: Yes, sir.
"THE
COURT: Have you consulted your counsel before doing so?
"THE
DEFENDANT: Yes, sir.
"THE
COURT: Have you talked with Mr. Noch about this matter?
"THE
DEFENDANT: Yes, sir.
"THE
COURT: I am satisfied that the defendant is pleading
voluntarily, intelligently, and knowingly, and I will accept
the pleas."
It is clear
that the trial court failed to obtain...
