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COMMONWEALTH v. BARRETT (12/11/72)

decided: December 11, 1972.

COMMONWEALTH
v.
BARRETT, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1968, No. 1314, in case of Commonwealth of Pennsylvania v. Ronald Barrett.

COUNSEL

David Zwanetz, for appellant.

Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Wright, P. J., would affirm on the opinion of Judge Chudoff. Watkins, J., dissents.

Author: Hoffman

[ 223 Pa. Super. Page 164]

Appellant contends that a guilty plea entered pursuant to a plea agreement was involuntarily and unknowingly made, and that he should have been permitted to withdraw his plea after it became apparent that the trial judge was not going to impose the lighter sentence recommended to him by the district attorney.

On November 4, 1968, defense counsel assured appellant that an agreement had been reached with the district attorney, and that the trial judge having knowledge of this agreement would impose a sentence of no more than four to twenty-three months imprisonment. Appellant then proceeded to plead guilty to two indictments charging him with burglary, larceny, and receiving stolen goods. The trial judge engaged appellant in an extensive colloquy to determine whether appellant knowingly and voluntarily made his plea. During the colloquy the following transpired: "The Court: The Court, before accepting your pleas of guilty, must inform you that, although a plea of guilty will be taken into consideration by the Court in fixing the sentence to be imposed upon you, the Court cannot, under the law, before it hears the evidence or a summary of the evidence, give any assurance to you or make any promise to you that, if you plead guilty, the Court will, in consideration of your plea, impose a sentence of less than that which might be imposed upon you in the event that you did not plead guilty. Do

[ 223 Pa. Super. Page 165]

    you understand the meaning of what I have said? Defendant: May I speak with the attorney? The Court: You certainly may." At that moment, counsel spoke to appellant who sought reassurance about the promised plea agreement. In appellant's petition to withdraw his guilty plea, counsel sets forth the substance of that off-the-record discussion: "Thereafter, the attorney for the Petitioner related to the Petitioner the substance of these remarks and informed him that there existed the possibility that the Court might impose a greater sentence, however, the Petitioner was told by his attorney that in his opinion the sentence would be reasonably close to the recommended minimum of four months." (Emphasis added) With that, the colloquy resumed: "The Court: Have you finished conferring with your counsel? Defendant: I have. The Court: Do you understand what I have said to you? Defendant: I do." The lower court then accepted appellant's plea of guilty. The trial judge suspended sentence on the burglary conviction, but sentenced appellant to eighteen months to three years imprisonment on the larceny conviction. On December 12, 1968, appellant's petition for leave to withdraw his guilty pleas, filed December 4, 1968, was denied. On April 7, 1971, appellant filed a petition under the Post Conviction Hearing Act, alleging that his guilty pleas were involuntary. After an evidentiary hearing, appellant was granted leave to file a Motion for New Trial and/or a Motion in Arrest of Judgment Nunc Pro Tunc. Finally, on January 4, 1972, appellant's motions were denied by the trial judge. The present appeal followed.

An examination of the colloquy discloses that the learned trial judge did ask a full range of questions testing the voluntariness and understanding of the consequences of a guilty plea. The fault, if any, cannot be attributed to the lack of or the inadequacy of the

[ 223 Pa. Super. Page 166]

    colloquy. The history of this case and the apparent confusion in the mind of the appellant created by the combined effect of assurances from counsel, the agreement promising leniency, and the words of the trial judge, illustrate, however, the problems inherent in the plea bargaining process.

In Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966), our Supreme Court expressly indicated that plea bargaining is in general a permissible device, frequently serving the best interests of both the Commonwealth and the accused. That device has been utilized to encourage the moving of cases by having the accused enter a plea of guilty, and thereby avoiding costly, time-consuming litigation to determine guilt. In exchange, the agreement usually involves some form of leniency or absolution. Problems have arisen in those cases where the accused is coerced into the bargain, or where the bargain is not kept. Because of the potential ...


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