Appeal from judgment of sentence of Court of Common Pleas of Delaware County, Sept. T., 1971, No. 963, in case of Commonwealth of Pennsylvania v. Gene LaFunies Thomas.
David E. Auerbach, Assistant Public Defender, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J.
[ 221 Pa. Super. Page 419]
This is an appeal from appellant's 1971 guilty plea to possession and sale of narcotic drugs.
Prior to the imposition of sentence, appellant was asked by the lower court if there was anything he wanted to say. The appellant then stated: ". . . As far as using drugs, I have never used drugs. I have never sold drugs." The Court: "Now wait a minute, wait a minute. You pleaded guilty." Appellant: "I did plead guilty, Your Honor, because I had no alternative really." Defense Counsel: "There is no function in attacking the merits of the complaint. [sic] It has been entered. You cannot enter a plea of guilty say well,
[ 221 Pa. Super. Page 420]
really, I am not guilty." The Court: "Let him say his piece. Have you anything further?" Appellant: "Well, I was just going to say that at 2303 [appellant's residence] I am buying [the house]. I have two fellows there, one of my nephews, and another fellow living with me. One of the fellows, I understand, was selling drugs. One case, I came home one night and they had a raid at the house. I was not aware that drugs were being sold from my house. That is all I have to say, Your Honor."
The lower court then sentenced appellant to five to ten years, pursuant to the Act of September 26, 1961, P. L. 1664, § 20; August 24, 1963, P. L. 1147, §§ 1, 2, 35 P.S. § 780-20. This statute provides in relevant part that a person convicted of a first offense for the sale of narcotics shall be sentenced "to pay a fine not exceeding five thousand dollars ($5,000.00) and to undergo imprisonment by separate or solitary confinement at labor for an indeterminate term having a minimum of five (5) years and a maximum of twenty (20) years."
Appellant contends that his sentencing under this statute amounts to cruel and unusual punishment because of the mandatory provisions of the act. Arguing that he has been denied his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, appellant notes that men and women are sentenced differently under the Act. A woman would not receive a minimum sentence under the act because of the provisions of the "New Muncy Act," 61 P.S. § 566. However, a man would have to receive a minimum sentence. 35 P.S. § 780-20. We do not reach this issue because we find that the trial judge should not have accepted appellant's guilty plea.
Although counsel failed to raise the validity of appellant's guilty plea on appeal, we ...