Appeal from order of Superior Court, Oct. T., 1968, No. 494, affirming order of Court of Quarter Sessions of Philadelphia County, Nov. T., 1966, Nos. 1387 to 1391, inclusive, in case of Commonwealth v. Robert J. Evans.
John H. Lewis, Jr., for appellant.
Paul R. Michel and James D. Crawford, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen concurs in the result. Dissenting Opinion by Mr. Chief Justice Bell.
Appellant is before this Court on a grant of allocatur following the Superior Court's per curiam affirmance of the dismissal after hearing of appellant's petition under the Post Conviction Hearing Act. There is only one issue presented for adjudication by this appeal: whether it is ever proper for the trial judge
to participate in the plea bargaining which so often precedes the entry of a guilty plea. In this case, it is undisputed that such participation did in fact take place. The Commonwealth's only witness at the hearing below, Mr. Hardin, appellant's first counsel, testified that he entered into an agreement with the district attorney and the court as to the probable sentences which would be imposed on the various indictments. He stated "We had two side-bar conferences, The district attorney, Judge Wright and myself went back in chambers. We discussed the possibility . . . that if he pleaded guilty to all five of the bills, Judge Wright . . . would sentence him on one, because it was one act." It is the view of this Court that such a procedure is not consistent with due process and that a plea entered on the basis of a sentencing agreement in which the judge participates cannot be considered voluntary.
This is not the first time that this Court has expressed such an opinion. In Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966), this Court held that plea bargaining in general was a legitimate practice, which, if properly circumscribed, offered a valuable alternative to trial for both the Commonwealth and the defense in certain cases. However our warning was quite clearly expressed at the time: "While we are not willing to completely proscribe plea bargaining, we do recognize that the awesome effect of a guilty plea and the sensitive nature of the bargaining process makes certain safeguards essential. 'Our concept of due process must draw a distinct line between, on the one hand, advice from and "bargaining" between defense and prosecuting attorneys and, on the other hand, discussions by judges who are ultimately to determine the length of sentence to be imposed.' . . . ."
This position is in conformity with that of the most respected commentary in the area. For example, Informal
Opinion No. 779, ABA Professional Ethics Committee announces that "A judge should not be a party to advance arrangements for the determination of sentence, whether as a result of a guilty plea or a finding of guilty based on proof." 51 A.B.A.J. 444 (1965). Furthermore, the American Bar Association Project on Minimum Standards for Criminal Justice sets out the explicit provision under "Responsibilities of the trial judge" that "The trial judge should not participate in plea discussions." ABA Minimum Standards, Pleas of Guilty, § 3.3 (Tent. Draft, February, 1967). First, the defendant can receive the impression from the trial judge's participation in the plea discussions that he would not receive a fair trial if he went to trial before the same judge. Second, if the judge takes part in the preplea discussions, he may not be able to judge objectively the voluntariness of the plea when it is entered. Finally, the defendant may feel that the risk of not going along with the disposition which is apparently desired by the judge is so great that he ought to plead guilty despite an alternative desire. What was pointed out in a recent case bears repeating here: "The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even ...