*1 328 (Alаska 1981); 1359 Fidelity United States and Guar-
P.2d
Winkler,
Co. v.
(8th Cir.1965);
anty
Elliott v.
Order reversed and case remanded. Jurisdiction is relin- quished.
MONTGOMERY, J., in the concurs result. Pennsylvania
COMMONWEALTH of COLE, Appellant. Michael Superior Pennsylvania. Court of
Argued June 1988. Aug.
Filed *2 Station, Gorson, appellant. for Merion Noah for Com. Sacks, Philadelphia, Atty., Asst. Dist. Alan CIRILLO, Judge, and President Before McEWEN, WIEAND, ROWLEY, CAVANAUGH, MELINSON, JJ. and BECK, KELLY, POPOVICH WIEAND, Judge: negotiated Cole entered
Michael Bеfore he had conspiracy. criminal robbery and charges of however, a motion to withdraw sentenced, filed Cole been entered volun- it had alleging guilty plea, charges. Following innocent of the that he was tarily and the motion to the trial court denied hearing, evidentiary an two concur- Cole to serve and sentenced withdraw the for not less than three each imprisonment, rent terms Cole (3V2) years. more nor than ten years one-half and 321,1 challeng- motion, to Pa.R.Crim.P. pursuant then filed a provides as follows: 1. This rule Challenge Guilty Plea
Rule 321. validity guilty plea, or (a) challenging A motion writing guilty plea shall be in to withdraw a of a motion denial ing the trial court’s denial of his motion to guilty plea. denied, When this motion was Cole filed a direct appeal from the judgment argues of sentence. He that the trial court abused its discretion when it dеnied the motion to guilty. withdraw his co-defendant,
Appellant, along Robinson, with Earl had been arrested on charged June 1985 and robbery, aggravated simple assault, theft, receiving stolen property and criminal conspiracy connection with robbery beating elderly in a two women restroom Greyhound at the terminal in Philadelphia. Bus Trial on charges these originally scheduled December of continuances, but because trial did not commence 14, 1986, until July when trial court heard pre-trial motions by appellant which had been filed and co-defendant *3 Robinson. After defendant’s motion to pursuant dismiss to denied, Pa.R.Crim.P. 1100 had been the Commonwealth to proceeded present in response evidence to a by motion defendant to suppress evidence. After receiving testimony from witnesses, two Commonwealth the court continuеd the hearing until following morning the to allow Ms. Essie Dooley, one the robbery victims and an essential Com- witness,2 to from monwealth travel Georgia, where she was father, caring for a sick to as a testify Commonwealth witness.3 (10) days shall be filed the imposi- with trial court within ten after tion of sentence. (b) disposed promptly. The motion shall (c) may hearing The trial court schedule a on the motion and argued shall determine whether thе motion shall be before one judge judges panel sitting alone or before a as a court en banc. single judge judge may Whenever hears the motion alone the any ruling by make made could be court en banc.
Pa.R.Crim.P. 321. robbery lady 2. The other bag victim the was an itinerant whose who, therefore, whereabouts were unknown and was not available to testify. 10, Appellant’s trial had been continued from December 1985 and 10, unavailability for rescheduled March 1986 because of the of this witness. 1986, 15, Dooley’s presence morning July after On testified, had appellant known before she had become but co-defendant, Robinson, guilty. entered a Earl and, through plead guilty Appellant sought then also counsel, with the negotiated agreement an charges robbery plead guilty he whereby would exchange for the Common- conspiracy, criminаl which charges against him remaining would nol pros wealth at sentenc- any from recommendation making and refrain accept- the trial court Following colloquy, an extensive ing. sentencing September plea and scheduled appellant’s ed dismissed its wit- 17, thereupon 1986. The Commonwealth nesses, Georgia. August returned to On Dooley guilty, appellant pleading more a month after than motion, This as guilty plea.4 his filed а motion to withdraw observed, hearing. denied after have we of innocence argues that assertion Appellant trial court guilty plea provided motion to withdraw the withdrawal of a fair and reason allow with motion, therefore, denial of that plea and that court’s disagree appellant’s abuse of discretion. We was an and, follow, affirm the for the reasons which reasoning of sentence. judgment Cоurt Supreme was set forth applicable law Forbes,
as follows: right to withdraw a there no absolute
Although
court,
the trial
it is clear
plea,
received
properly
*4
sentencing ...
should be
request
that a
made before
ex rel. Culbreath v.
liberally allowed. See United States
(3d Cir.1972);
Rundle,
“It has been under Pennsylvania and Fed- eral law that a trial judge has discretion to refuse a request a plea retract is guilty since there no right However, absolute to withdraw such a request made sentencing before has been generally construed liberally favor of the accusеd.” Id. at 732 of 466 F.2d (emphasis added) (footnotes omit- ted).
The ABA in complete Standards are harmony with this view. The standards state:
“(b) In the of a showing absence withdrawal necessary to correct a manifest injustice, a defendant may withdraw his of guilty or nolo contendere as a matter right once the plea has been accepted by sentence, court. Before the court in its discretion may allow the defendаnt his plea for any fair and just prosecution reason unless the substantially prejudiced by upon reliance the defen- plea.” dant’s Project
ABA on Minimum Justice, Standards for Criminal Relating Standards of Guilty 2.1(b) Pleas (Approved § Draft, 1968). See also v. Neely, (1972) (Roberts, 295 A.2d J., concurring opinion).
Thus, determining whether to grant a pre-sentence motion for withdrawal of a plea, “the test to be by the trial applied courts is Unit- justice.” fairness аnd ed States v. Stayton, supra at 561. If the trial court finds “any reason”, fair and just withdrawal before sentence should permitted, be freely unless the prosecution has been “substantially prejudiced.” ABA Standards Relating to Pleas of Guilty, supra. As the Third Circuit noted:
“The liberal rule withdrawal of a sentence before is consistent with the efficient adminis-
333 It the number of justice. of criminal reduces tration of a 'knowing and voluntariness’ contesting aрpeals disentangling avoids the difficulties plea, and is not also ensures that a defendant such claims. It he clearly unless waives right by jury a trial denied [to] it.” 1276, (3d 424 F.2d 1279 Cir. Young,
United States v. 1970). facts it presented, standards these
Applying have al- that the trial court should must be concluded guilty plea. Appellant of appellant’s lowed withdrawal stated, made before the request, as his reason for the guilt prior adjudication and and degrеe hearing I sentence, nothing didn’t plead guilty ''I don’t want to of inno- by this assertion Obviously, appellant, do.” “fair in the a proceedings cence—so early —offered Moreover, of his on reason for withdrawal just” suggestion that slightest this record there is even “substantially preju- in any sense prosecution ABA upon plea.” the defendant’s Stan- diced reliance supra. to Pleas of Relating Guilty dards 190-192, Id., (emphasis at A.2d at 271-272 299 original).5 hеld has followed Forbes Superior Court may of innocence constitute fair
an assertion
guilty plea.
of a
pre-sentence
reason for the
withdrawal
Ortiz,
117, 482
Pa.Super.
334
A.2d
See: Commonwealth
89,
(1984);
Pa.Super.
1110
330
478
Kay,
Commonwealth v.
(1984),
denied,
471
105 S.Ct.
cert.
U.S.
Whittall,
(1985);
85 L.Ed.2d
(1982);
Pa.Super.
(1977). Indeed,
431,
Boofer,
innocence and
a defendant has asserted his
where
guilty,
Regarding Rules
Criminal
withdrawal
provide:
Procedure
Guilty
of Plea of
Rule 320. Withdrawal
discretion,
sentence,
may,
any
in its
At
time before
court
permit
and a
of not
or
withdrawn
direct
guilty substituted.
Pa.R.Crim.P. 320.
Commonwealth has been unable to
preju
show substantial
*6
dice, it has been held to be an abuse of
trial
discretion for a
pre-sentence petition
court to
a
for
deny
withdrawal
Woods,
See: Commonwealth v.
452 Pa.
(1973);
Forbes,
However, motion tо a to guilty plea prior withdraw sentencing generally will be disallowed where the Common- wealth will substantially prejudiced by be allowing hearing same. At the on to appellant’s motion his withdraw guilty plea, the argued Commonwealth that had appellant to plea waited enter a until it had clear become the complaining witness, that Ms. had Dooley, appeared to testify against him and appellant that only sought to with- plea his Ms. Dooley Georgia. draw after had returned to so, He did argued, hope Commonwealth in that Commonwealth would not able “to its fly be witness back up from court Georgia.” agreed trial Com- monwealth, concluding Commonwealth, Ias “[t]he it, great understand problems.” A criminal permitted will not be to fast play defendant and loose guilty plea process with the in order delay to prosecution or jeopardize to ability Commonwealth’s Here, guilt. prove appellant guilty plea only entered a it apparent after became that the Commonwealth had been to bring Dooley Georgia able from to Philadelphia testify to against him. to permit To him guilty plea after the had Georgia witness returned to her home in be to permit appellant would to use his motion to withdraw for the improper purpose gambling on the Common- produce wealth’s ability the witness for second trial. This is the type prejudice to the against Commonwealth protect. which rule was intended The trial court did when, circumstances, not abuse its discretion under such it appellant’s denied motion to withdraw his of guilty. See: Ross, (1982)(request guilty plea to withdraw properly denied key dismissal of Common it been made after the when had plea); on the reliаnce wealth witnesses (Com Carelli, pre-sentence if substantially prejudiced be monwealth would where Com granted were to withdraw guilty motion day on the set present were court witnesses monwealth trial, great had travelled many of the witnesses for places employ from their and had taken leave distances trial). present at ment case, the bald assertion the circumstances this
Under
did not
petition
cоnsti-
appearing
appellant’s
of innocence
allowing
with-
appellant
tute a fair and
reason
guilty.
only
Not
would the Commonwealth
draw
*7
allowing
such withdrawal but
prejudiced
have been
a
mockery
to make
appellant
permitted
would have been
a
plea hearing process
appellant,
which
after
guilty
his
guilt
full
admitted his
and
role
complete colloquy,
and
robbery
conspiracy.
аnd
innocence, it
ceremony
“A
is not
is an
guilty
a
guilt....
one
a
occasion when
offers
confession
he
acknowledge
defendant is before the court to
facts that
crime____
is
a
He is then to voluntar
instructed constitute
occurred,
he
the Common
ily say what
knows
whether
not,
he
accept
them or
and that
prove
wealth would
will
meaning
legal
legal consequence.”
their
and their
Com
551, 559,
504
475 A.2d
Anthony,
v.
Pa.
monwealth
(1984).
plead
A criminal defendant who elects
1307-1308
duty
questions truthfully.
has a
Com
answer
Mitchell,
170, 175, 465 A.2d
819
monwealth
(1983).
permitted
1286
A defendant will
be
his
to the
disposition
by lying
the final
case
postpone
his
thereafter
concerning
culpability
court
and
prior testimony
guilty by contradicting
Brown, asserting innocence. Cf. Commonwealth
(1976).
Pa.Super. 240, 363 A.2d
guilty plea procedures
its
Pennsylvania
constructed
way designed
guarantee
guilty pleas
assurance that
understanding^
tendered. See: Pa.R.
are voluntarily
Crim.P. 319 and comment thereon. The
entry
a guilty
plea is a protracted and comprehensive proceeding wherein
the court
obliged
is
to make
specific
determination after
extensive
on the
colloquy
record that a plea is voluntarily
and understanding^
tendered. A
colloquy must
include inquiry
(1)
as to whether
the defendant understood
the nature of the charge to whiсh he is
(2)
pleading guilty;
there is a
(3)
factual basis for the plea;
the defendant
understands
that he has the right
trial;
(4)
to a jury
defendant understands
that he is presumed innocent until
he is
(5)
found guilty;
the defendant
is aware as to the
permissible range
sentences;
the defendant
judge
aware that the
is not bound by the terms of any plea
agreement unless he accepts such agreement. Common
Willis,
wealth v.
(1977).
McEWEN and McEWEN, Judge, concurring. majority with the view agreement
I am absolute guilty plea motion presentence in Supreme guilt Court sion of envisioned Anthony, supra. *9 338 trial by Certainly denied the court. the Common-
properly prejudiced the substantially by wealth would have been and, as surely, appel- the plea guilty, withdrawal of write, however, I trifling justice system. lant was I in cling, reecho to which albeit particular view expression until by my rather fashion the excellent lonely eminent of the view. colleague majority in position Supreme
It has that the Court long my 185, (1973), Forbes, 299 268 v. A.2d Commonwealth Woods, Pa. and Commonwealth (1973), applicable as a to all such proclaim principle, did not motions, that is per the assertion innocence presentence permit a “fair reason to withdrawal of a just” se Ortiz, See: (Dissenting Opinion by A. 2d 1111-1113 McEw en, J.). that a presen The admonition Forbes Woods guilty plea tence to withdraw a be “construed request accused, of the is a direction liberally” favor obvious, heedlessly rea blithely ignore or abandon Moreover, I scrutiny son. submit Fоrbes beyond dispute clear that: makes Woods requires The that an examination of the Supreme Court such motions are entire record be conducted whenever presented. found and just
The that “fair reason” was Supreme Court only by cases the assertion presented in those benchmark that it made so with the fact together innocence early proceedings. Court, decisions, of these could either Supreme did inno- stated —but not—that assertion of
well have just” cence offered a “fair and reason itself withdrawal. that, accused
Thus it I law to be when an is that view guilty plea, effort to withdraw a presentence undertakes a consider the required totality the trial court is 1, and pre-sen reflected the record that a circumstances entered, securing guilty plea simply from practice, 1. The when questiоns containing myriad of an affirmative answer to accused *10 compose required the may innocence tence assertion of the cir totality that just provided reason” “fair does not establish the record cumstances reflected otherwise.
KELLY, concurring: Judge, I the concurring opinion. add McEwen’s Judge
I join following additional observations. innocence an assertion of majority
I
that
agree with
plеa,
a
some
guilty
cause” to withdraw
“just
provide
will
an assertion to
However,
I
find such
before would
cases.
require
I would
plea,
to withdraw a valid
cause”
“just
be
inconsistency between
for the
explanation
credible
some
of the initial
support
admissions
sworn
appellant’s
Otherwise,
of innocence.
assertion
subsequent
and the
plea
“I
I am
now claim
incantation of the words
disingenuous
a
magic words
alсhemy would become
by judicial
innocent”
requirement
“just
legitimate
which
evade
with
construction of
Such a
of the
cause” for withdrawal
constrain trial
would
precedents
Court’s
Supreme
our
disingenu-
the most
rather than sanction
to reward
courts
perjuries.
claims,
most brazen
and the
ous of such
v.
McEwen, I
not read Commonwealth
do
Judge
Like
or Commonwealth
Woods, 452 Pa.
(1973) to mandate
185,
Regardless, allowance withdrawal precluded the Commonwealth Hence, I concur in the result. in this case. *11 SMITH, Appellee, A. Robert Industries, Inc., CORPORATION, Eagle-Picher GAF CELOTEX Corporation, Corporation, Keene Cor- Johns-Manville Sales Co., Inc., Owens-Corning Fiberglass poration, Certainteed Pacor, Inc., Appellees. Corporation, Products Appeal of GAF CORPORATION. Pennsylvania. Superior Court Argued Dec. 1988. Aug.
Filed