*2 SPAETH, LIPEZ, Before WICKERSHAM and JJ. SPAETH, Judge: an
This is from an order to appeal denying petition that the argues withdraw guilty plea. Appellant petition should have been because his granted guilty plea colloquy We and therefore agree, deficient several respects. reverse. been with and was tried in charged rape had 18, 1976, in a 1976. The trial ended on
February February 168 1976, to a 23, pursuant
hung jury.
February
appellant,
On
to
assault.1
plea bargain, pleaded guilty
aggravated
9-10,
Brief
Appellant argues, Appellant’s
11, that
admits,
Brief at
Appellee’s
during
Commonwealth
file a
he was not informed of his
to
colloquy
right
or of
his
guilty plea prior
to withdraw
petition
court has failed to
his
When the lower
rights.
appellate
to file a'
right
petition
inform the defendant of
of a failure to
consequences
withdraw a
guilty plea,
trial is conclu
so,
right
jury
do
an invalid waiver
McGarry,
Pa.Superi-
inferred.
v.
Commonwealth
sively
n.2, 421
cases).
848 n. 2
(1980) (citing
A.2d
Ct.
see,
Ct.
Vigue,
Pa.Superior
And
court did not ascertain Stolle, v. 254 Pa.Superior the Commonwealth guilty plea. Comment, 319. 483, 53 Pa.R.Crim.P. (1978); Ct. 386 A.2d defect, Brief too, this Appellee’s The Commonwealth admits 8-9, at that: argues but the defendant although therefore made clear to
It was in the record plea hearing does not appear such clarity a record not recited prior was made to because reference of which he was the and acts of the nature of to enter a plea. asked being Id. court’s holding echoes the lower
This argument “[d]ue week, it was at trial the previous the produced evidence present a factual basis for clear that at 3. We are unable op. accepted.” Slip was therefore makes Pa.R.Crim.P. 319 reasoning, to subscribe to this to be he was scheduled on the date did 5, 26, sentenced, on July later found and October 1976. He was meantime, prison. 1979, In the to five was sentenced to two roof, injury which spinal in a fall from cord he had sustained a Appellant argues his sentence was paraplegic. rendered him physical We do not reach condition. in view of his excessive n.3, 133, Pa.Superior 142 429 Paige, Ct. 287 v. issue. Commonwealth 1135, (1981). 3 1140 n. A.2d
169
for the plea mandatory
into the factual basis
inquiry
50,
Willis, 471 Pa.
Finally,
court
that the members of the jury
did not inform appellant
had to be unanimous in their decision. This omission was
Buono,
v.
reversible error. Commonwealth Dello
Pa.Su
572,
Carl,
Reversed. WICKERSHAM, J., files a dissenting opinion. WICKERSHAM, dissenting: Judge, I would affirm sentence. judgment herein, On October appellant charged a criminal with the crime of complaint rape, had sexual intercourse with a female allegedly having age *4 consent, she being without her force and not on October Law- spouse, Shenango Township, rence The case came to trial in of 1976 County. February Henderson, before the Honorable John F. President Judge a with Alfred V. Rob- jury Papa, Esquire representing ert Reno. a The case ended with “hung jury.” later, Reno,
One week before appellant, again counsel, Henderson with his Mr. and entered Judge Papa alia, into a plea following inter at bargain. appeared, the plea colloquy:
THE Mr. you charged COURT: are on an indict- ment at of 1975 No. 810 with one count of a rape, felony of the first You to these degree. plead charges trial, this case was tried last week. At jury unable to arrive a verdict. It been has indicated to the Court now that are enter a prepared plea to lesser you charges offense, than this is correct?
MR. RENO: Yes. behalf, MR. PAPA: Mr. Reno’s that is In correct and he can speak for himself. directly
THE Mr. Reno? COURT: MR. RENO: Yes.
THE COURT: There has been some bargaining, think, office, between Counsel and the District Attorney’s is that correct? Yes,
MR. has, there Your Honor. PICCIONE: If the Court please, Mr. Reno has agreed plead guilty to the charge of assault. it aggravated would be Specifically, under Code, of Section 2702-A4 the Crimes which charges aggravated a of the ass[a]ult, misdemeanor first degree. In Honor, return for of guilty, Your Com- monwealth has that at the of it agreed time sentencing, would a nol-pros rape recommend of the at No. 810 charge of 1975or a reduction of rape aggravated assault.
THE be, COURT: You will if enter this you plea, into required to come Court and be sentenced just as though had to trial you gone and been found guilty by time jury, at that will sentenced be under Statute that for a calls maximum period imprisonment of five maximum fine ten years and a thousand dollars and that’s the under which will be Statute sentenced. Do that? understand
MR. RENO: Yes.
THE Has there COURT: been any plea bargain- ing hasn’t been mentioned?
MR. not, PICCIONE: There has Your Honor. *5 THE COURT: Has there been any promises than promises might have been involved in this plea that induced bargain or to change your plea enter a of plea to the of guilty charge assault? aggravated No, MR. RENO: sir.
THE threats, COURT: coercion or force Any used against you that induced to enter this plea?
MR. RENO: No.
THE COURT: all these Understanding things nature of the waivers are are making, you prepared enter a plea now of to the of guilty aggravated assault?
MR. RENO: Yes.
THE COURT: we will direct that the be Alright, plea taken.
MR. itMay please Court, Honor, PICCIONE: Your at No. 810 1975, ‘Now, of 23rd day February, Defendant, Robert has entered a to the lesser assault, included offense of aggravated Pur- dons 2702-A4 only.’ Statu[t]e
THE COURT: Alright, You are out on thank-you. bail?
MR. RENO: That’s right. THE COURT: You will be notified when you appear for sentencing. 23, 1976,
Guilty colloquy, 1-2, 5-7. February Reno did not for on April 1976, and was declared He was fugitive. arrested as a result aof bench warrant issued the Lawrence by County Court in 1979. On June 1979, Alfred V. Papa, Esquire filed a petition withdraw as counsel which was joined in by 29, 1979, Reno. On June an order was entered permitting withdrawal of as counsel and Papa directing the Lawrence Public County Defender’s Office take over the further in the legal proceedings case.
On October Robert Reno before appeared Judge Henderson represented Levine, Norman A. Public De- fender, court reviewed with Reno his sentencing. *6 alia, criminal record inter past following colloquy, and appeared:
THE Why you COURT: didn’t 1975 for when were scheduled to come in and be you sentenced?
MR. RENO: Because I was work for a man in doing Steubenville, Ohio. I was here at working up Papa’s Al here I I place. and laid off. Papa got working for a Charlie and his hotel burned guy, Pagalesi out Steubenville, and it was burned down and I Ohio and, truth, down there to tell it working you never even me here crossing dawned on about from Ohio-Steubenville, Ohio, when I was and then I working in this accident. I fell off a roof and I got broke my cord and sheared spinal cord off and broke my spinal my back and I was in and hospitals nursing homes.
THE Ever COURT: since?
MR. Yes. RENO:
THE COURT: When did do that? you MR. about, RENO: Five and a half I years ago, just think. I just came back from Johnstown Rehabilitation Center.
THE COURT: Did the send hospital penitentiary to the you rehabilitation center? No,
MR. RENO: I was there before I went there. Well, THE we have a list here of your past COURT: which, list, least, I record to the at and don’t according not, know whether it is but have been complete in and out of since 1956 on jail penitentiary both Is that felony charges. right? misdemeanor MR. I was at the I RENO: did time twice. workhouse. did one to two there I did three to six years Hunnington [sic].
THE at Western Peniten- COURT: Three six years tiary? No,
MR. RENO: Pa. Hunnington [sic], Western Peni- THE committed to COURT: You were sent they Hunnington tentiary [sic]? MR. RENO: Yes. 1964?
THE That was COURT: Yes, MR. I think so. RENO: Jail, ’61, the THE ’62—Lawrence County COURT: ’61, the Lawrence Jail, County Lawrence County Jail, ’61, the Lawrence Jail. ’56 started at County in the Jail and then twice peniten- Lawrence County tiary. right? Is
MR. Yes sir. RENO: Well,
THE it is the sentence of the COURT: Mr. *7 Court that the cost of a fine of you pay prosecution; the Peni- you imprisonment and in State undergo $1.00 for a less period years of not than two more tentiary than I that years. you five want to understand determining case, what the sentence should this I be the the present charges against consider fact that you; you did leave the and jurisdiction fugitive become for several and considering your past record years; your own and condition and con- history personal history; the of case sidering events itself. I am considering that has been said here in I everything today Court and don’t not, know whether I said record or but I your past am and I certainly past record am also considering your into taking your consideration condition. It is physical that, Mr. that if my opinion are commit- you incarceration, ted to total total complete and confine- ment, there is a of danger becoming serious in- you volved in further criminal as have in the activity you think past. I that total than confine- anything ment would this crime. depreciate seriousness of If were on I placed don’t think there is probation, any but question what your record indicates that that past mean wouldn’t and would continue anything to commit criminal activities. This is the minimum amount I of confinement find is with consistent and own rehabilitative public your of protection needs. 5, 1979, at 4-8.
Sentencing October transcript, the valid- filed a motion Thereafter, challenging appellant of and a motion for modification of the 1976 ity guilty plea of sentence, both of which motions were denied Order 20, 1979. In the interim a direct Court dated December of sen- taken to this court from the appeal judgment tence entered October Hender- with that of the agree portion Opinion Judge the facts
son December where he analyzes dated and issues as follows: acceptance plea,
At the colloquy preceeding [sic] of the crime of aggrava- the Court the elements explained he under- ted to the Defendant. He indicated that assault Defendant and desired to plead guilty. stood to trial right was also informed of his his rights, including confrontation, his privilege against by jury, right of innocence presumption self-incrimination and his he was these waiving was told that by pleading desire He indicated his rights. understanding again to plead guilty.
The defendant was informed that he would be required
time would be
and at
sentencing,
period
sentenced
a statute
for a maximum
calling
under
a maximum fine of
of 5
imprisonment
*8
this. He
$10,000.
understood and accepted
Defendant
indicated,
the Assistant District Attorney,
further
as did
bargaining, promises,
that there had been no other plea
him into
threats,
pleading
coercion or force used to induce
that he was satisfied
Defendant also indicated
guilty.
of trial counsel.
with the representation
at the trial held the
evidence produced
Due to the
the
week,
that a
basis for
it was clear
previous
factual
accepted.
was therefore
plea
was
and
plea
present
McCall,
recent case of Commonwealth
Although
a
351,406
Pa.Super.
(1979),
A.2d 1077
indicates
induced
unlawfully
defendant who
his
alleges
plea
is generally
of a
sentence
en-
lighter
counsel’s ‘promise’
evidentiary
he
hearing even
had stated
though
titled to an
his
not
induced,
so
we
plea
be-
lieve that decision
applies only
cases where the record
See,
does not
the claim.
clearly refute
v. Strader,
262 Pa.Super.
In the case at not did Defendant only deny any promises, the Assistant District did also. Attorney In addition, the Defendant was told that he specifically would be sentenced and was told what the maxim[u]m terms of that sentence would be. It was not until after sentencing, over 3Va later that Defendant first indi- cated any hesitancy. then, Even he did not state that either the Commonwealth or his attorney had said he would not be imprisoned. He stated that he told only his attorney he did not want to do any time. His statement further indicated that his was also based on financial (even considerations though he was free, aware that court-appointed counsel was available). [Sentencing tran- October script, at 11-13.] Thus, the record indicates clearly promise of non-imprisonment, but rather an on the attempt part of the Defendant to test the waters by pleading then retracting he plea if was sentenced to imprison- ment. There is no indication of inducement improper Defendant’s was therefore properly accepted. sentence, In imposing the Court considered the nature of the charges, Defendant’s actions failing to sentencing and becoming fugitive for several years, his past record, which included numerous offenses (both felo- nies and misdemeanors), as well as the health, Defendant’s including the serious nature of his present injuries. It was and our is opinion that the present sentence is the minimum amount which is with the protection consistent public Defendant’s rehabilitative needs. Lower Ct. at 2-4. Op.
It is clear that when a defendant wishes, after imposi- sentence, tion of to withdraw his guilty plea, there must be a *9 176
showing of
on the order
prejudice
of manifest
injustice.
Robinson,
Commonwealth v.
253
496, 385
Pa.Super.
A.2d 448
(1978); see also
291,
Commonwealth v.
462 Pa.
Hayes,
300 n.
7,
85,
341 A.2d
90
(1975).
n.7
I find under all the evidence
record
this case that appellant has failed to prove
that his
and that
the lower
involuntary
court
denied
relief.
properly
appellant
Finally appellant
raises a question
the sen-
concerning
tence
and whether the
imposed
lower court abused its discre-
tion in
I find no
sentencing.
abuse of discretion. What we
said in
Zimmerman,
Commonwealth v.
286,
282 Pa.Super.
Appellant contends that his sentence was excessive and not a statement sufficiently supported by of reasons. We disagree. sentenced to three-and-one-half- to-seven years $35,000.00, fined imprisonment, charged costs for his four violations of the Controlled Substance, Drug, Device and Cosmetic Act. That sen- tence is within the limits established the Act and we do Id., find it excessive. 13(b)-(h), 35 P.S. 780- § § 113(b)-(h). In Commonwealth Martin, 466 Pa. 650, 351 A.2d (1976), 658 the Supreme Court stated that the individualized determination inherent in the sentenc- ing process required, minimum, a consideration of the particular circumstances of the offense and the char- acter of the defendant. See also Commonwealth v. Rig- gins, 115, 474 Pa. 377 A.2d 140 In Commonwealth v. Pauze, 155, 265 401 A.2d Pa.Super. (1979), this Court noted that deference is to be great to the given trial court’s discretion in sentencing, and that the reasons therefor must be set out in the record so that a determina- tion can be made that was, fact, discretion exercised. Id., Ct. at Pa.Superior A.2d review
My of the record reveals that the lower court complied with the mandates of Martin and Riggins. shows that colloquy amply lower court was aware of appellant’s background information and gave long and deliberate consideration to the details.