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COMMONWEALTH v. WILKINS (05/17/71)

decided: May 17, 1971.

COMMONWEALTH
v.
WILKINS, APPELLANT



Appeal from order of Superior Court, Oct. T., 1969, No. 840, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1967, Nos. 1636 and 1637, in case of Commonwealth of Pennsylvania v. James Wilkins.

COUNSEL

David Kairys, Assistant Public Defender, with him John W. Packel, Assistant Public Defender, and Vincent J. Ziccardi, Defender, for appellant.

James D. Crawford, Deputy District Attorney, with him Martin H. Belsky, Carl B. Feldbaum and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Justice Jones.

Author: O'brien

[ 442 Pa. Page 525]

In August of 1967, appellant was indicted for assault and battery, assault with intent to rob, and robbery. The charges all arose out of a purse snatching, the victim of which identified appellant as her assailant. The Commonwealth's case against appellant was strengthened by the discovery, by the victim, of a card

[ 442 Pa. Page 526]

    with appellant's name on it among her credit cards when her handbag was returned to her. Sometime before October 27, 1967, appellant's counsel and the prosecuting attorney reached an agreement whereby appellant would plead guilty and the Commonwealth would recommend to the judge that appellant be sentenced to eleven and one-half to twenty-three months on the robbery bill and to a year's probation on the assault and battery bill.

On October 27, 1967, appellant's guilty plea was entered and accepted. Before accepting the plea of guilty, appellant responded to an on-the-record inquiry by the assistant district attorney and stated that no one -- his own attorney, the Commonwealth's attorney, or the court -- had promised him any specific sentence if he pleaded guilty and that he understood that if he pleaded guilty, he "could be sent away . . . for a long time."

The trial court first heard evidence as to the offense and evidence as to appellant's background, including his prior juvenile record, and his history of being a slow learner who had been to a number of different schools and correctional institutions. Although the prosecuting attorney later testified that he had mentioned his promised recommendation to the judge at a side-bar conference, no recommendation of a sentence was made on the record at that time. The trial court decided to defer sentence pending preparation of a presentence report.

Four months later, on February 29, 1968, a sentence hearing was finally held in appellant's case. Appellant had then been in jail seven months since his arrest. The other participants had been more active. The prosecuting attorney who had handled the case in its earlier stages, including negotiation of the plea bargain, was no longer assigned to it. The judge, who had probably handled hundreds of cases in the meantime, gave no indication

[ 442 Pa. Page 527]

    that he was aware of any Commonwealth recommendation as to sentence. The prosecuting attorney now assigned to the case mentioned on the record that there was a recommendation but for some reason, either his timidity or the manner in which the hearing proceeded, was never able to state what the recommendation was. After again interviewing appellant as to his background, the court sentenced him to eighteen months to fifteen years on the robbery bill. Appellant's counsel suggested a shorter minimum and the assistant district attorney suggested that both the minimum and the maximum be shortened, but at no time did the assistant district attorney make the specific recommendation which his predecessor had promised would be made.

In September of 1968, appellant filed a post-conviction petition alleging, inter alia, that his sentence of a fifteen-year maximum was erroneous, as the maximum for simple robbery was ten years, and that his guilty plea was involuntary.

A hearing was held on appellant's petition on May 22, 1969. The Commonwealth conceded that the appellant's sentence was improper and argument was limited to the validity of the plea. Appellant testified that on the morning of trial, the assistant district attorney and his lawyer told him that if he pleaded guilty, the assistant ...


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