Commonwealth v. Bethea
379 A.2d 102
Pa.
1977
Check Treatment

*3 Before EAGEN, J., O’BRIEN, C. ROBERTS, POM- EROY, NIX MANDERINO, JJ.

OPINION OF THE COURT POMEROY, Justice. Bethea,

Gerald the appellant, was convicted aggravated assault with robbery, maim, intent to and un- lawfully carrying firearm. No post-verdict motions were filed, and was appellant sentenced to concurrent prison of, terms ten to respectively, two twenty years, and one-half to five and one years, and one-half to three years. The Superior Court affirmed the judgments of sentence. Com- Bethea, monwealth v. 243 Pa.Super. 494, 366 A.2d 262 (1976).1 This Court then granted appellant’s petition for allowance of appeal.2 For the reasons hereinafter indicated, we vacate the judgments of sentence and remand the case for resentencing. Judges Spaeth separate

1. dissenting Hoffman and opinions, filed joining opinion each in the of the other. 1970, Appellate 2. July 31, 1970, See Court Jurisdiction Act of Act of 673, II, 204(a), 211.204(a) P.L. (Supp. 1976-1977). Art. 17 § P.S. § 574

I. in this is whether a appeal The first presented issue to stand consider defendant’s decision court properly a more severe justifying imposition trial as a factor had the defendant than would have been imposed v. Staley, 229 Pa.Super. In Commonwealth pleaded guilty. this Court decided 322, (1974), 324 A.2d 393 Superior its asserts that by in the negative.3 appellant question failed to adhere Court Superior decision present asked to correct. an error we are Staley, Staley, supra, v. In Commonwealth resentencing on remanded for vacated a sentence and had indicated in his pre-sentence the trial judge ground comments a harsher impose penalty that he was going chosen to stand trial rather than the defendant had because States, v. United 412 from Baker plead guilty.4 Quoting Staley observed: 1069, 1969), Cir. the court in (5th F.2d 1073 Araujo, 1976); Accord, (2d United States v. 539 F.2d 287 Cir. 3. 1976); Capriola, United States (9th Cir. United States v. 537 F.2d 319 Derrick, Rauhoff, States v. (7th 1975); United F.2d 1170 Cir. v. 525 States, (8th v. (6th 1975); Hess United 496 F.2d 936 1 519 F.2d Cir. Duffy, (2d Cir.), cert. v. 1974); F.2d United States 479 1038 Cir. 299, denied, 978, (1973); United L.Ed.2d 221 414 94 38 U.S. S.Ct. denied, 826, Jansen, (7th Cir.), cert. 414 v. U.S. States 475 F.2d 312 Stockwell, 130, (1973); 472 United States v. 94 S.Ct. 38 L.Ed.2d 59 denied, 1924, 948, (9th Cir.), S.Ct. 36 cert. 411 U.S. 93 1186 F.2d Hopkins, v. United States (1973); 150 L.Ed.2d (5th Baker v. United (1972); 412 F.2d 1069 Cir. Wiley, People v. (7th 1960); v. 1969); United States 278 F.2d 500 Cir. Nichols, Iowa, Moriarty, (1962); State v. 25 Ill.2d 185 N.E.2d 688 State, v. (1976); 336 A.2d 113 Johnson Md. 247 N.W.2d 249 Jackson, (1975). See also United States U.S. 88 S.Ct. *4 Wright, 1209, v. (1968); 214 United States 138 533 F.2d 20 L.Ed.2d Fauver, (3d United (5th 1976); 1975); Poteet v. 393 Cir. 517 F.2d Cir. Floyd, (2d v. 1974); States v. United States 496 F.2d 982 Cir. Marzette, Thompson, United States v. (8th 1973); F.2d 207 485 Cir. denied, 918, 214, Cir.), (7th cert. 414 U.S. 94 S.Ct. 38 476 F.2d 1196 Lehman, (1973); (7th United States v. 154 93 Cir. L.Ed.2d States, 377, Scott 1972); U.S.App.D.C. v. United 135 419 F.2d 264 States, 1966); (1969); (5th v. Thomas United F.2d Cir. 368 941 Martell, 1964); v. (4th United States v. Letters 335 F.2d 764 Cir. Commonwealth, 403, (1963). 346 Mass. 193 N.E.2d 578 judge’s 4. The trial statement was follows: as

575 “ 'An accused cannot be punished a more severe by sen tence because he unsuccessfully exercised his constitution al to stand trial right rather than plead guilty. See States, Thomas v. United 368 F.2d 941 (5th Cir. 1966); Martell, United v. States (4th 335 F.2d 764 Cir. 1964); ” v. United States F.2d Wiley, 278 500 (7th 1960).’ Cir. Commonwealth Staley, supra, 229 324, at Pa.Super. 324 A.2d at 395. Staley opinion went on to declare that “a although plea be a for proper factor a to consider in guilty may to lenient

deciding give whether more sentence . or a demand for a plea not trial are not jury [a] factors in that a should consider whether to deciding Id. 229 324, a more severe sentence.” at give Pa.Super. A.2d at 395. Staley principle

We believe the that a demand for trial is a factor which warrants jury escalating of a is That severity premised sound.5 is principle primarily upon rationale that to a trial right by jury is one, a fundamental to constitutionally guaranteed all defendants,6 criminal and a practice which exacts a [addressing “THE COURT: counsel for the ... I defendant] Judge gave only eighteen am aware that Williams him months hand, years. guilty plea. minimum to five This this On the other that was a disposed give larger I am was a trial. to him a minimum in you case because was a trial. Do understand?” Common- Staley, supra Pa.Super. wealth v. at 324 A.2d at 394. holding 5. We have no occasion this case address the proper converse 'Staley plea guilty may that a in a case be considered as a mitigating imposing opinion express factor no con- Standards, cerning Draft, Guilty (Approved ABA it. See Pleas of 1968) 1.8(a); 377, 389, Sec. Scott v. United (1969). 419 A.2d (“In prosecutions, 6. U.S.Const. amend. VI all criminal the accused enjoy right trial, speedy public shall by impartial to a jury an of the State and district wherein the crime shall have been commit- .”); I, (“Trial ted heretofore, . Pa.Const. art. 6§ shall be as right inviolate.”); and the (“In thereof remain 9 § all prosecutions criminal public speedy accused hath to . . .a by impartial jury vicinage ”). trial of the . . jury Sixth Amendment applicable was held to the through States Louisiana, the Fourteenth Amendment in Duncan v. 391 U.S. (1968). 88 S.Ct. 20 L.Ed.2d 491 case, appellant In the instant was convicted a trial jury. holding today, reasoning upon based, Our and the it is which *5 576 the is without right justification the exercise of for

penalty a exacted price by imposing unconstitutional.7 The to the state to its put on one who chooses harsher sentence is obvious. trial rather than plead a proof by jury for the individual defendant penalized is the only Not should right but, his constitutional the exercise of present a given well known within sufficiently become practice effect on the exercise of chilling a substantial jurisdiction, ensue. inevitably right the would a which burdens the exercise of a Although practice bemay justified sometimes right constitutional fundamental interest, of incapable a state compelling that showing upon fashion, outweighs in some less restrictive achievement see, v. United States right, e.g., protected by interest 1209, 138, 570, 581-84, 20 L.Ed.2d 88 S.Ct. Jackson, 390 U.S. 377, States, 135 U.S.App.D.C. v. United (1968); 147-48 Scott 264, (1969), F.2d 269-71 the Commonwealth 382-384, 419 of a more severe contend that the imposition here does not to stand trial rather defendant who chooses sentence on a interest, compelling than fosters1such plead guilty See Brief fact, validity Staley. to concede appears interest at 9. Nor do we state perceive any for Appellee of a de infringement the substantial which would justify which results from the to trial right fendant’s on those who choose penalties harsher imposing practice put the equally applicable to cases in which an accused elects to state situation, by jury. proof the Common- In either to its without constitutionally prove required that to at a trial a defendant wealth is doubt, Winship, guilty beyond re U.S. 90 In 397 a reasonable (1970); with or whether the trial be 25 L.Ed.2d 368 S.Ct. insisting penalize jury, that the state a defendant for without a deprivation of due be an unconstitutional meet this burden would process of law. infringing supra. In addition to cited in note 7. See cases jury, practice penalizing a defendant accused’s to trial plead guilty imposing or sentence for the refusal a more severe may, trial and conviction in certain circum- to admit stances, against self-incrimination. violate the Fifth Amendment (5th 1976); Wright, Scott States v. Cir. v. See United States, (1969); 419 F.2d 264 Thomas v. United (5th 1966). F.2d 941 Cir. United trial.8 we reaffirm Accordingly, to stand in Commonwealth Staley is consti- holding Court’s *6 for court a more tutionally impermissible impose severe sentence because a defendant has chosen to stand trial rather than plead guilty.9 Typically, argued guilty plea step

8. it is that a indicates a first toward and, conversely, plead guilty rehabilitation that a refusal to indicates Indeed, repentance. case, a lack of remorse and in the instant “ stated, you pled guilty, might trial court . . had it have your this, you pled shown me the side of attitude about but guilty, fought way p. Judge it all the .” See infra. Bazelon, speaking Appeals David Columbia, for the of for the District of suggested shortcomings has of these contentions: “Repentance penology. premise has a in role But the of our jurisprudence always repent- criminal has been that the time for adversary process fact-finding ance comes engine, trial. The after is a prejudged not a drama of contrition which a defendant is expected up society. to knit his lacerated bonds to is a tension “There between the of the accused to assert his society repentance. innocence and the interest of in his But we resolving could consider this conflict in favor of the latter interest only unparalleled opportunity if the trial offered an to test the other, repentance better, of the accused. It does not. There is repentance. evidence of such of sort information collected presentence reports provides finely portrait a far more brushed of days the man than do a few hours or at trial. And the offender probation prison

while on insight or in after trial can demonstrate his problems his far into better than at trial. proper display “If the defendant were unaware that a of remorse might willingness might affect his his to admit the crime sentencing judge guidance. offer the some But with the induce him, lighter dangled sincerity any ment of a before of Moreover, culpa questionable. cries of mea becomes the refusal of plead guilty necessarily a defendant to repentance. is not indicative of a of lack may regret desperately A man his crime but wish stigma avoid the of criminal conviction.33 “33 fact, argument glib willing In a colorable can be made that a something ness to admit in order to ‘secure in return’ quite opposite repentance, indicate and that a reluctance to Altschuler, guilt may repentance. admit in fact reflect See Bargaining, Role in Plea Prosecutor’s 36 U.Chi.L.Rev. 57 n. 24 (1968).” Scott v. United (1969). 270 71 holding today 9. Our accord with those federal and state courts issue, 3, supra, which have addressed the see cases cited in note as expressed 1.8(b) Standards, well as the views in section of the ABA Draft, Guilty (Approved 1968). provides Pleas of That section as follows:

II. It remains to determine whether the learned trial in this case penalized appellant consideration appellant’s decision to stand trial. The source of the dispute is the italicized portion statements made by the judge prior to the imposition of sentence:

“THE COURT: Gerald, Well shame, it’s a great but you are going to learn in life that you have a for responsibility your actions, it is not only your interests that have to be taken into account but it is the interest of the commu- was, nity. This as I say, aggravated crime. As far as I’m concerned, even it though is your first offense I think substantial punishment must be inflicted here. If you had pled guilty, were perhaps you involved, there is no ques- tion in my mind, but had you pled guilty might have *7 shown me the side of your this, attitude about but you pled it all guilty, fought the way, and the jury found and you guilty, I’m to going sentence you at this time.

“The sentence of the Court is that the defendant pay the cost of prosecution and that he undergo imprisonment in a state institution for a period of not less than ten nor more than twenty years to and be begin computed from 27, 1973. January That’s in No. 236 Criminal Division 1973.”10 (Emphasis added.) “(b) The impose upon court should not any a defendant justified in excess of that which any would be of the rehabilita-

tive, protective, purposes deterrent or other of the criminal law because the require prosecution defendant has chosen to prove his at plea trial rather than to enter a or nolo contendere.” 10. The in sentences the related crimes were administered as follows by the trial court: “In No. 237 Criminal Division 1973 where the defendant was maim, convicted of assault with pay intent to we direct that he prosecution undergo imprisonment cost of and period that he for a years, of two and a half to five said sentence to be concurrent with already imposed

the sentence in 236 Criminal Division 1973. “In No. 238 Criminal Division 1973 where the defendant was firearms, carrying convicted of penalty unlawful I think the years, there is three is it not? Yes, MR. DILS: Your Honor. In his to the appeal Court, Superior appellant relied heavi- Commonwealth v. Staley, supra. The majority opinion on ly in the Staley Superior distinguished on the ground that, unlike the trial in Staley, case at bar did not base the sentence on exclusively appel- lant’s failure to but plead guilty, rather “based the sentence on the violent nature of the crime and the fact that appel- lant had shown no remorse.”11 Bethea, Commonwealth v. supra, at Pa.Super. A.2d at 265. We agree with distinction, Court in this Superior but the correct inquiry in a case such as this is not whether the trial court con- Yes, MR. SEDOR: Your Honor. THE COURT: sentence of the Court is that the defendant undergo imprisonment period in a state institution for a not less years than one and a half nor more than three to run concurrent imposed with the sentence in No. 236 Criminal Division 1973.” sentencing expla- court concluded its with the further nation: “Now, Gerald, you could have received a sentence of fourteen to twenty-eight years twenty. you in this I crime. have sentenced to ten to you give your age I didn’t the maximum because of record, you good prior the fact that had a but because of the present seriousness of this crime and the ever threat of robberies city, years, occurring in this which have been here for several we going thing are to serve notice this case that that sort isn’t going to be tolerated.” reasoning analogous 11. This is to that followed Commonwealth v. Hill, Pa.Super. (1972), 296 A.2d 860 which was cited Writing discussed in the Court’s decision below. for a Hill, Judge (now Justice) unanimous court Packel observed: claim, “Contrary appellant’s this case is not one in which there inequality imposition high of sentence or the of a *8 exclusively guilt. based on the defendant’s refusal to admit his It very strongly is true that the stated: ‘This Court feels that step, place, recognition the first if rehabilitation is ever to take is a offense, insight into the seriousness of the for without some into any the act there can never be ion.’ As the court priate opin- rehabilitation in this Court’s out, pointed however, appro- it reviewed all the going sentencing process, factors including into the appellant’s prior 861 43-44, Pa.Super. record.” Id. 223 at 296 A.2d at (footnote omitted). express remarks, We no view as to whether or not the trial court’s Hill, quoted supra, indicate that it have based the sentence imposed guilty. part appellant’s on the plead refusal to admit or extent, however, To the that Hill holds that a sentence is long exclusively valid so as it is not based on an accused’s decision plead guilty, disagree. not to we See discussion in text infra. sidered factors in legitimate sentence, but fixing whether it considered such factors. only This is so because any increase in sentence which results from a defendánt’s decision to put the state to its a proof puts price upon exercise of a fundamental constitutional right, hence is unjustified. Thus, a sentence based in on an part impermissible consider- ation is not made proper simply because the sentencing judge considers other permissible factors as well.

In whether a trial deciding judge considered only permissible factors in sentencing defendant, a an appellate must, court of necessity, review all of the judge’s comments. Moreover, in making this determination it is not necessary that an court be appellate convinced that the trial fact consideration; relied upon erroneous it is sufficient to render a sentence invalid if it reasonably appears from the record that the trial court relied in whole or in part upon such factor.

Applying the above principles the case at bar, we are persuaded that appellant’s sentences must be vacated. A fair of the reading trial court’s remarks prior imposition see pages 105-106, supra, indicates that the judge may have been influenced the fact that appellant chose to stand trial rather than plead guilty, with resultant possible augmentation of the sentences imposed. we Accordingly, conclude that appellant’s sentences must be vacated and the cause remanded for resentencing.

The order of the vacated, the judgments of sentence are vacated, and the case is remanded for consistent resentencing with this opinion.

MANDERINO, J., filed concurring opinion.

EAGEN, J.,C. dissents and would affirm the judgments of sentence.

MANDERINO, Justice, concurring.

I with agree majority an accused cannot be punished a more severe sentence because he chose to *9 than to stand trial rather right his constitutional exercise that the sentenc- Here, concluded majority the guilty. plead influenced by appel- been improperly have judge may ing rather than plead guilty. stand trial lant’s choice to influ- was so however, reveals that record, clearly unequivo- is thus to take the duty constitutional enced. Our is inappropriate. here imposed that the sentence cal position constitutional to a person’s no realistic protection We give sentencing we tell his when peers trial before to stand right even ones proper have been may their sentences that judges have than would a harsher sentence imposed though they guilty. appellant pleaded had the imposed been issue, makes does not reach Although majority and stand guilty a refusal to plead suggest no sense sentencing as a factor not be considered trial may a sen- be considered by could defendant, guilty plea but case. proper factor in a mitigating as a tencing judge situation; an accused either is the same in effect chilling by pleading he can get lighter who believes and enter a guilty to a trial will eschew his that a to suggest Moreover, incongruous it seems plea. not guilty, an accused for pleading penalize The ABA guilty. for pleading but can reward accused 5, supra, at footnote majority opinion noted Standards on chill impermissible but also logic place not only defy trial by jury. of the the exercise