Appeal from judgment of sentence of Court of Common Pleas of York County, Aug. T., 1972, No. 180, in case of Commonwealth of Pennsylvania v. Gregory L. Davy.
Hugh S. Rebert, Assistant Public Defender, for appellant.
Morrison B. Williams, First Assistant District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Watkins, P. J., and Jacobs, J., dissent.
[ 226 Pa. Super. Page 524]
Appellant contends that the court below erred in refusing to grant appellant leave to withdraw his guilty plea prior to the imposition of sentence.
On January 22, 1973, appellant entered a plea of guilty to a charge of prison breach which allegedly occurred on September 8, 1972. After a full colloquy, the trial judge accepted the plea and ordered a pre-sentence investigation. On the date scheduled for sentencing, appellant appeared in court, and prior to sentencing, moved to withdraw his guilty plea. The motion was heard and denied on the same day. On February 26, 1973, appellant was sentenced to a term of three to six years imprisonment.
At the hearing, appellant offered several reasons for wanting to withdraw his plea. Appellant feared an unduly
[ 226 Pa. Super. Page 525]
severe sentence because the sentencing judge was the same one that presided at appellant's previous trial for armed robbery. Appellant also stated that his attorney and a detective from the district attorney's office considered the prison breach offense of secondary importance to the armed robbery charge; and that he feared, and was informed by his attorney, that his punishment would be more severe if he exercised his right to trial by jury. The trial judge refused to grant appellant leave to withdraw.
While there is no absolute right to withdraw a voluntary and intelligent guilty plea, properly received by a trial court, it is clear that a request to withdraw made prior to the imposition of sentence, should be freely and liberally allowed. Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973). Trial courts, although vested with discretion to disallow withdrawal prior to sentencing, should "show solicitude for a defendant who wishes to undo a waiver of all the Constitutional rights that surround the right to trial -- perhaps the most devastating waiver possible under our Constitution." Commonwealth v. Neely, 449 Pa. 3, 6, 295 A.2d 75, 76 (1972) (concurring opinion), quoting, Dukes v. Warden, 406 U.S. 250, 258 (1972) (concurring opinion). In exercising that discretion, a trial judge should allow withdrawal if the defendant offers a fair and just reason therefor, and the prosecution has not been substantially prejudiced by relying on the previously accepted pleas.*fn1 Commonwealth v. Forbes, supra.
[ 226 Pa. Super. Page 526]
Notwithstanding this policy, the trial court apparently believed that unless appellant showed the plea to have been involuntarily or unintelligently made, withdrawal should not be allowed. By applying this standard, it is clear that the court did not consider ...