Commonwealth v. Sutherland
| Decision Date | 24 June 1975 |
| Citation | 340 A.2d 582,234 Pa.Super. 520 |
| Parties | COMMONWEALTH of Pennsylvania v. John Robert SUTHERLAND, Jr., Appellant. |
| Court | Pennsylvania Superior Court |
William H. Naugle, Harrisburg, for appellant.
Morrison B. Williams, Deputy Dist. Atty., York, for appellee.
Before WATKINS, P.J., and JACOBS, HOFFMAN, CERCONE, PRICE VAN der VOORT, and SPAETH, JJ.
Appellant contends that the lower court erred in not allowing him to withdraw his guilty plea, because the trial judge did not concur in the sentence recommended by the Assistant District Attorney.
On December 19, 1972, appellant was indicted by the York County Grand Jury on charges of burglary, larceny, receiving stolen goods and forgery. On April 10, 1973, appellant, his counsel, and the Assistant District Attorney reached an agreement, a summary of which was reduced to writing. Under the terms of the bargain, appellant agreed to plead guilty. In return, the Commonwealth agreed to continue bail, to request that sentencing be deferred until August 1973, and to recommend that appellant receive an indefinite term at Camp Hill. The existence and terms of the plea bargain were made known to the court.
The trial judge conducted a lengthy colloquy to ensure that appellant's guilty plea was made knowingly and voluntarily. The court also explained to appellant that he would accept the plea bargain, but that the court was not bound by the District Attorney's recommendation as to sentence. The court deferred sentencing until August 27 1973. On August 24, 1973, appellant asked to withdraw his guilty plea. The court directed that a formal written petition be prepared and appellant did so on September 27, 1973. At that time, a hearing was set for November 7, 1973. After receiving evidence, the court concluded that the guilty plea was voluntarily and knowingly made, and that all of the terms of the plea bargain had been kept. On November 13, 1973, appellant was sentenced to concurrent terms of five to ten years' imprisonment, to be followed by concurrent terms of one and one-half to three years' imprisonment. [1]
Appellant retained private counsel to take an appeal to this Court. Although counsel accepted a fee, he failed to file briefs or request extensions of time. Consequently, this Court nolle prossed the appeal on June 7, 1974. On August 14, 1974, appellant filed a PCHA petition, alleging that the court erroneously denied his petition to withdraw guilty plea and that his appellate counsel was ineffective. After a hearing, the PCHA court held that appellant had been denied effective assistance of counsel on appeal, but otherwise denied relief. Thus, the lower court granted appellant the right to direct appeal of the trial court's refusal to allow appellant to withdraw his guilty plea.
Rule 319 of Pa.R.Crim.P., 19 P.S. Appendix, legitimizes the use of the plea bargain in criminal trials. Subsection (a) provides that before a judge can accept a plea bargain, he must conduct an on-the-record colloquy to ensure that the plea is voluntarily and understandingly tendered. Subsection (b) provides: (Emphasis supplied.) In this case, the trial judge conducted extensive colloquies to determine whether the plea was voluntarily and understandingly tendered and whether appellant understood and concurred in the agreement. The trial judge was satisfied that both requirements were met and these findings are not disputed by appellant. Appellant must be allowed to withdraw his guilty plea because it is error for a trial court to reject the sentence recommendation contained in a bargained plea agreement without affording the defendant an opportunity to withdraw his guilty plea.
Commonwealth v. Evans, 434 Pa. 52, 252 A.2d 689 (1969), decided prior to the effective date of Rule 319, held that it was improper for a trial judge to participate in plea negotiations. In so doing, however, the Court approved § 3.3(b) of the ABA Minimum Standards, Pleas of Guilty, (Approved Draft 1968) "If the trial judge concurs (in the plea bargain), but later decides that the final disposition should not include the charge or Sentence concessions contemplated by the plea agreement, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty or nolo contendere." 434 Pa. at 56, n.*, 252 A.2d at 691, n.*. (Emphasis supplied.) In a case virtually identical to the instant case, we held that if the trial judge is adequately informed of the existence and terms of a plea bargain, it is error to impose a stricter sentence than the one recommended without permitting the defendant an opportunity to withdraw his plea. Commonwealth v. Barrett, 223 Pa.Super. 163, 167, 229 A.2d 30 (1972). The ABA Standards and Barrett are 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. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1972); United States ex rel. Culbreath v. Rundle, 466 F.2d 730, 734 (3d Cir. ...
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