Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1972, No. 50, in case of Commonwealth of Pennsylvania v. Lloyd Staley.
Leonard Sosnov and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
James T. Ranney and David Richman, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Spaeth, J. Jacobs, J., dissents. Wright, P. J., and Spaulding, J., took no part in the consideration or decision of this case.
[ 229 Pa. Super. Page 323]
Appellant was tried before The Honorable Robert Trembath sitting with a jury and on December 4, 1972, was found guilty of forcible rape. On June 19, 1973, he appeared before The Honorable Ethan Allen Doty for sentencing. No objection was made to this substitution of judges.*fn1
At the sentencing hearing it appeared that on November 30, 1972, appellant had pleaded guilty to another charge of forcible rape, and that on April 9, 1973, The Honorable Robert W. Williams, Jr., had sentenced him to a term of 18 months to five years. Before imposing sentence, Judge Doty indicated to appellant's counsel that he was going to impose a more severe sentence because appellant had not pleaded guilty when before Judge Trembath, as he had when before Judge Williams, but instead had chosen to go to trial: "The Court: Mr. Mandracchia, I am aware that Judge Williams gave him only eighteen months minimum to five years. On the other hand, that was a guilty plea. This
[ 229 Pa. Super. Page 324]
was a trial. I am disposed to give him a larger minimum in this case because it was a trial. Do you understand?"*fn2
Judge Doty then sentenced appellant to a term of two and one-half to five years, to run concurrent with the sentence imposed by Judge Williams. Thus appellant's maximum term was not increased, but his parole eligibility was delayed for one year.
Although we do not believe that candor should be held against a judge, the quoted remark was improper and requires that appellant be resentenced. "An accused cannot be punished by a more severe sentence because he unsuccessfully exercised his constitutional right to stand trial rather than plead guilty. See Thomas v. United States, 368 F. 2d 941 (5th Cir. 1966); United States v. Martell, 335 F. 2d 764 (4th Cir. 1964); United States v. Wiley, 278 F. 2d 500 (7th Cir. 1960)." Baker v. United States, 412 F. 2d 1069, 1073 (5th Cir. 1969). See also United States ex rel. Starner v. Russell, 260 F. Supp. 265 (M.D. Pa. 1966) ("I think, Mr. Stuart [defense counsel], that you and your client are both aware that this court has always extended leniency on pleas of guilty that is not extended when people take their chances upon a trial.").
The District Attorney correctly points out that a plea of guilty may be a proper factor for a judge to consider in deciding whether to give a more lenient sentence. It does not follow that the converse is true. A plea of not guilty or a demand for a jury trial are not factors that a ...