*1 9 in а institution. it state appellant serve to have judge 1983, 4, appellant transferring of October The Order institution, is affirmed. a state affirmed. Order
BROSKY, J., concurs in the result.
ROBERTS, J., concurs with statement.
ROBERTS, Judge, concurring: is clear, the opinion makes Judge As Tamilia’s virtue of punishment to an increase not subjected sentence, changes the merely amending his order state the Erie Jail to the County from of confinement place serving extended sen- an currently where he institution his entitlement way has no establishеd Appellant tence. relief, the order of affirm- consequently join ance.
489 A.2d Appellee, Pennsylvania, COMMONWEALTH CAPPELLI, Appellant. L. Gerald Pennsylvania. Superior Court of 16, Argued 1984. Oct.
Filed March 1985. *3 Chester, F.
Robert for Pappano, appellant. Kane, Helen Assistant District Attorney, Philadelphia, Commonwealth, appellee. SPAETH,
Before Judge, CAVANAUGH, President WIEAND, McEWEN, CIRILLO, SOLE, JOHNSON, DEL CERCONE, POPOVICH and JJ.* CAVANAUGH,Judge: L.
Appellant, Cappelli, Gerald seeks to set aside his grounds (1) of sentence on judgment that court trial in refusing erred his motion reconsider sentence guilty plea (2) withdraw his a hearing; without he was counsel; (3) denied effective assistance of court lower assigning adequate erred not sufficient and reasons for and, (4) the sentence imposed; the sentence imposed was manifestly excessive. We find no merit to any of these and, therefore, contentions affirm.
mayWe consider the first second claims together they since are relatеd. It is claimed that the court erred in failing to provide hearing upon post-sentence his petition guilty plea. Conjunctively, withdraw his it is claimed (different trial counsel) counsel from present appellate indicated, in that he prior entry ineffective “had to the of the plea” appellant would receive a sentence considerably which was than actually less the sentence received. Appellate counsеl asserts if there had been hearing on the motion guilty plea point' to withdraw the would have been established.
We first
that the
to the
challenge
plea
observe
guilty
made
that, therefore,
was
after
sentencing
the standard
for determination of the
right
showing
withdraw is a
of
injustice.
Starr,
485,
manifest
Commonwealth v.
450 Pa.
(1973);
A.2d
Woods,
301
592
Commonwealth
Pa.
452
546,
(1973);
307
Ammon,
A.2d 880
Commonwealth v.
Pa.Super.
(1980).
THE Twenty. DEFENDANT: is your lawyer? THE COURT: And Mr. Von Till Yes. THE DEFENDANT: Now, having meetings THE have you COURT: been Mr. conferences with Von Till?
THE DEFENDANT: Yes. you THE are satisfied that he understands COURT: And against you? the facts of all of cases Yes. THE DEFENDANT: you represented THE COURT: Are satisfied that he’s to the of his and for interests? you ability your best best THE DEFENDANT: Yes. you complaints
THE have or criticisms COURT: Do his representations you? of about THE DEFENDANT: No. you
THE COURT: satisfied with his representation Are you? of
THE DEFENDANT: Yes. right.
THE COURT: All forward, I Your Very May go MR. WIEDEMER: well. Honor?
THE COURT: Yes. October, And this first of day
MR. WIEDEMER: now 1981, I, Cappelli, following agree- enter into the Gerald Pennsylvania represent- of ment with DeCaro, A. and Kirk by Roy Deputy Attorney ed District Wiedemer, entering Attorney. V. Assistant District am agreement this with advise and assistance [sic] Till, Esquire. My Randolph Counsel. Counsel Von agreement my reviewed this Counsel have have with all оf terms him. All the terms and discussed its agreement been to me explained conditions *6 entering into this I am them. fully I understand and into entering I am this free will. my of own agreement not forced or coerced voluntarily. I have been agreement into this entering I am agreement. into this to enter I of the crimes to which guilty I agreement because am I believe to and because agree plead guilty hereafter will in my best interest. agreement into this entering that Thеreafter, charges Cappelli to which was multiple agreement and the were described pleading guilty the record: further read into to all of
I, plead guilty am to Cappelli, agreeing Gerald I am of all and guilty because the offenses listed above of them. each
I, cooperate to with the Cappelli, agree fully Gerald of prosecution any of in the Pennsylvania Commonwealth Yacoubian, Richard following persons: all of the and Fox, Cummings. Paul Tyrone Thereafter, agree- under the appellant’s specific obligations stated, quote, part: and we ment were for I, exchange that in Cappelli, understand Gerald Pennsylva- foregoing, and the Commonwealth of above agree make the nia, Messrs. and Wiedemer DeCaro following recommendations: sentencing, 1. will my At time of the Commonwealth I on the to which recommend that the sentences crimеs will all entering pleas guilty am of stated above be to and with one another. concurrent 2. of will not my That minimum term incarceration incarcer- years ten maximum term of my exceed twenty years. ation will not exceed my up 3. sentence will be That actual terms of discretion, not to exceed sentencing Judge, Judge’s I immediately terms set forth understand above. of ten jail means for a minimum go could for twenty years any period or years to mаximum periods. time less than those I, Cappelli, Gerald understand that if I violate of the agreement agreement terms of this that the null becomes and void and that the Commonwealth will not be bound terms, by its and that should I agreement violate the after I tender my guilty pleas they after are accepted by the Court of Common Pleas of Delaware County and of Pennsylvania will be free to make sentencing whatever it recommendations deems appropri- up ate to and maximum including jail consecutive terms for all of the crimes to which I am pleading which can be sentenced.
I have read and reviewed this agreement my with Coun- sel. I fully understand all of its terms. I am entering agreement into this and fully voluntarily, not having been coerced, pressured, or otherwise forced to do so. By signing agreement, I intend to be bound its terms.
The original copy that I’ve handed up to Court con- signature Till, tains the оf Mr. Cappelli, Mr. Mr. Von DeCaro and Your myself, Honor.
At this point, up the court took further inquiry appel- lant:
THE Jerry, COURT: Mr. Wiedemer is going to read me give facts which rise to support each one of the crimes to you’re pleading which Do guilty. you under- stand that?
THE DEFENDANT: Yes.
THE you COURT: want to listen and I’m closely sure Mr. Till listening Von will be If you. any there’s change, you simply interrupt as Mr. Till up Von has to this point bring to to the attention of the Court any change. you Do understand that?
THE DEFENDANT: Yes.
THE COURT: Do you you understаnd that do not have to plead to guilty anything?
THE DEFENDANT: Yes. don’t have to you you THE Do understand COURT: Do understand that? agreement? you into any enter DEFENDANT: Yes. THE if you jury Do understand that wanted you
THE COURT: of the every charges trials on one non-jury trials or and as a give you such a trial against we you, fact, you’ve proba- fixed trial dates as matter of we have Do under- beginning you October 19th. bly been aware that? stand
THE DEFENDANT: Yes. that no matter THE And do understand you COURT: you Till tells if weren’t you, you what Mr. Von оr plead guilty you guilty, didn’t to because weren’t want reasons, if other you plead guilty didn’t want that? you we would have a trial. Do understand THE DEFENDANT: Yes. you
THE Has forced or threatened anybody you COURT: plead guilty? in order for any way you THE DEFENDANT: No. Now, agreement
THE this is a COURT: written read it Mr. you previous today indicates that Do under- today put you Wiedemer has it on the record. agreement? stand that
THE DEFENDANT: Yes. agreement
THE Is anything COURT: there about *8 understand? you don’t
THE DEFENDANT: No. specific an as to the
Following colloquy exhaustive pleading guilty, to he was charges further asked: Now, guilty undеrstand that the you
MR. VON TILL: do a conviction? plea appear your will on record as THE DEFENDANT: Yes. a conviction you
MR. TILL: Do understand what VON or a finding you guilty It’s the same as a jury means? that? Judge finding guilty. you Do understand you THE DEFENDANT: Yes. maxi- you And do understand what the
MR. VON TILL: are? mum sentences Yes.
THE DEFENDANT: those, you making Understanding are MR. VON TILL: own free your statement of will? Yes.
THE DEFENDANT: threatened, And haven’t been you MR. TILL: VON make forced, any guilty plea? in way or pressured Yes. THE DEFENDANT: any not you TILL: And that have received MR. VON except exchangе entering that for sentence promise beginning into record at read that which was Do that? proceedings. you understand Yes. THE DEFENDANT: sign presence And you my TILL: did MR. VON presence down- your and in Mr. Wiedemer’s presence couple ago? stairs, days Office Attorney’s the District Yes. THE DEFENDANT: understanding that And the sole MR. TILL: that is VON of Pennsylvania the Commonwealth exists between you? Yes.
THE DEFENDANT: Now, read this statement with you’ve TILL: MR. VON it? me and discussed we’ve Yes. THE DEFENDANT: and, further: that I’m prepared And are satisfied you
MR. TILL: VON if not you to trial were proceed represent you doing you today. are going plead Yes. THE DEFENDANT: any suffering now from you TILL: And are MR. VON mental illness? No.
THE DEFENDANT: you Did you today? Are intoxicated TILL: MR. VON beverages? alcoholic No. THE DEFENDANT: *9 morning or drugs you any TILL: Did take
MR. VON days? last couple in the No.
THE DEFENDANT: age? you years TILL: And are 20 MR. VON Yes. THE DEFENDANT: in school? you get did TILL: How far
MR. VON grade. THE DEFENDANT: Eleventh English lan- TILL: Do understand you MR. VON guage? Yes.
THE DEFENDANT: it? read it and write you TILL: And can MR. VON Yes. THE DEFENDANT: what we’ve And do understand you
MR. VON TILL: today? discussed Yes.
THE DEFENDANT: its conclusion: the matter reached Finally, questions? other any Do hаve you MR. TILL: VON No. THE DEFENDANT: pleas Honor, I ask that Your
MR. VON TILL: of the record. part be made carefully very Till has Mr. Von Jerry,
THE COURT: rights have and the rights you explained in detail questions? Do giving up. you are you DEFENDANT: No. THE concerning me or him to ask
THE You want COURT: things? those No.
THE DEFENDANT: going on? what’s fully You understand THE COURT: Yes. THE DEFENDANT: sign Now, to be asked you going are
THE COURT: you are to which the informations specific case each the bench after leave You’ll do that guilty. pleading will take and know it sign those be asked you’ll but the table yоu at time, Mr. Till will sit some so Von *10 20 you sign make sure the rights ones couple because a
of them are not going understand, to be used. You Jerry, if I accept plea agreement, you are by bound terms plea agreement of that as explained it’s been to you and as I explained further to you?
THE DEFENDANT: Yes.
In order to ensure that defendants
who enter
pleas
fully
are
informed of the nature and results of a
guilty plea, our courts have provided for strict adherence to
procedures
detailed
in ordеr to
plead
effectively
guilty to
criminal charges. See Pa.R.Crim.P. 319
(Pleas
and Plea
Agreements).
plea
The exhaustive
in
proceedings
this case
a
represent
thorough compliance
the requirement
our
require
rules and cases. To now
the court to conduct a
hearing
upon simple repudiation
based
of all that was said
plea
at
the guilty
sentencing, proceedings
after
depreciate
gravity
which our proсedures attach to guilty
Here,
plea proceedings.
the record
ap
demonstrates that
court,
in
pellant,
open
persuaded the
accept
court to
his plea
evinced a full
unerringly
voluntary
understanding
of his plea
circumstances,
and its ramifications.
Under
it would be an affront
dignity
of the court and
orderly procedures to direct that a
must
hearing
be held
of the naked allegation
because
that defendant’s counsel
had, prior to the
of the
entry
plea, indicated to the defend
ant that he would receive a sentence less than the one
defendant unmistakeably agreed
under
proper
We,
plea negotiation.
therefore,
his
hold that the court did
not err in refusing
grant
hearing.
Our decision has
in the
In
Commonwealth v.
support
substantial
case law.
Brown,
240,
242 Pa.Super.
(1976)
A criminal defendant who elects to plead guilty a duty questions has to answer truthfully. We can not permit a defendant to postpone the final disposition of his case by lying the court and later alleging that his lies by were induced prompting counsel.
Id., 242 Pa.Superior
247,
Ct. at
Similarly,
425 Pa.
(1967)
A.2d 737
Supreme
our
rejected
Court
the necessity
hearing
fоr a
in a
petition
P.C.H.A.
wherein
asserted
given
that he was
assurances
his
attorney
which were at variance
unequivocal
with his
respons-
record
es at
the time of
Accord Commonwealth v.
plea.
his
*11
Klinger,
181,
323
Pa.Super.
(1983);
Despite that, main, the in fact these cases involve denial of a in hearing proceedings P.C.H.A. we feel that the same princiрle applies to hearing denial of a in a withdrawal of guilty plea where, proceeding especially here, petition was made to the court accepted plea, pronounced sentence and consequently is in the posi best tion to determine whether or not the petition merits a hearing. sure,
To be
there are cases which can be read to
support
the view that a hearing should be held.
In Com
Strader,
monwealth v.
166,
262 Pa.Super.
We, therefore, the claim that reject the motion to withdraw grant hearing on refusing promis- trial counsel was ineffective plea and that *12 Even receive a lesser sentence. that he would ing appellant received, they promises sentence were if of such evidence heard could not be no avail since evidence would be of plea. the record terms of contradict the incontrovertible to supra; Commonwealth Edrington, v. See Commonwealth (1984); A.2d 968 482 Pa.Super. 333 Litzenberger, v. 560, 485 Garvin, Pa.Supеrior Ct. (1984). A.2d 36 issues appellant’s attention to turn our
We shall now sentencing hearing. centering on the evidence of the court heard sentencing hearing, theAt the authorities and of broken co-operation with appellant’s pronouncing came. Before from which home sentence, this statement: the court made Well, I learned that a Jerry, guess you
THE COURT: to good people go pray. church is where or a synagogue Yes, Honor. THE DEFENDANT: Your good many And most of these or a THE COURT: the places. Jerry, involved those as with these crimes something my I already defendants have said about other In I am sentencing. your particular case thinking as to burglary for I think it is a parole are on you aware explained happened has how that and counsel] [defense I here happened. figured it out what and when and term could have been about a hundred maximum I don’t think I have done that sixty-seven years. to a group agreed cap You are lesser you. it doesn’t make a difference twenty, really of ten to but crimes many look at it because there are so you when as burglaries You admitted to four as well committed. I And corrupt organizations. the other crimes of when I cap of that distinguish you tried to between because can’t, that is you cooperate and I know that tried to and placed. I why cap am not disturbed with conceded, I could as has obviously, But [defense counsel] go I putting you probation. not think of on have fit take that are not a through step, you that and but these subject probation you compounded then police. silly thing you involving crimes did arrest, facts of the pleaded guilty resisting You but the Fortunately case could been much more serious. involved they very people weren’t. So the who were investigation sickening problem оf these crimes had forget police I can’t that. I can’t let the you protection in their society think that is not interested doing doing good job their they duty when are I of those did in this case. So have considered all they something reading from things. you know about counsel investigation and what defense presentence from community. the needs of the has told me. know about *13 before, community protected. said it the has to be of ravaged as it hаs these series It cannot be been a do put message out and I intend to events and have that. to a ten to appellant
The court then sentenced
term of
each of the counts of
and on the
twenty years
burglary
on
plus
of
four
conspiracy,
years
one count of
sentences
two to
one
on
four remain-
simple
years
assault and
to two
the
controlled
ing
conspiracy
possession
counts of
and for
of a
сoncurrently.
All sentences were ordered
run
substance.
sentence,
argues first that the
Regarding
appellant
his
adequate reasons for
assign
imposition
court did not
the
sentence,
second,
mani-
and,
that the sentence
was
imposed
In the seminal case of
festly excessive.
(1977),
Supreme
474 Pa.
Riggins, sentencing place ruled a court must its reasons Court record took into for a sentence on the to show the court by enumerated sentencing guidelines consideration the Legislature sup- The factors Legislature. by listed a of total include a considera- porting sentence confinement that, if or given probation tion that is an undue risk there confinement, the another partial defendant commit crime; that defendant in need of correctional treat- and, serious- depreciate ment that a lesser sentence will by ness of crime committed the defendant.2 sentencing that the A of the record of reveals review sentencing. took factors into consideration as many court co-operation au acknowledged The court appellant’s thorities, appellant court also noted that committed but the The great presently parole. a of crimes and was on number arrested, he appellant court further noted when factors, found Citing the the court resisted arrest. above conclusion, fit for probation, not to a subject be observed, con even defense counsel as the court which sentence, stated that its additionally curred. The court and, further, endeavoring protect community it was out”, saying is another put message way “to Pa.C.S. 2. 42 9725. § *14 the seriousness of depreciate
that a lesser sentence would the offenses. adequate. Although
We find the above reasons
be
not
refer to
in
sentencing judge
specifically
did
sections
Cоde,
Sentencing
it has been held that a court is not
the criteria of the Code and detail his
required to list
to each section.
response
Stufflet,
516,
(1981).
case,
Pa.Super.
Furthermore, the sentence was not exces manifestly sentencing, sive. As the court observed at had appellant agreement Commonwealth, not entered into with the appellant could received a sentence of one hundred sixty-seven sentence of ten years. Appellant’s to twen Also, ty years was well within allowed law. as was discussed, the court listed reasons previously adequately its We, therefore, for the sentence. do not find the sentence to manifestly Valentin, be excessive. Commonwealth v. su pra.
Judgment of sentence affirmed.
SPAETH, Judge, concurring opinion. President files CERCONE, J., did not participate the consideration or decision of this case.
SPAETH, Judge, concurring: President I agree judgment that the of sentence should affirmed. be However, I should rest that conclusion on the vagueness reaching the motion to the guilty plea, withdraw without when, whether, the issue of or by specific defendant plea motion to may withdraw contradict what was said incident to colloquy acceptance plea.