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decided: September 23, 1974.


Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 826 of 1973, in case of Commonwealth of Pennsylvania v. Robert Mark Turman.


William C. Haynes, for appellant.

Michael H. Ranck, Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Spaeth, J., concurs in the result.

Author: Cercone

[ 230 Pa. Super. Page 358]

This appeal arises from appellant's pleas of guilty to four counts of robbery based upon purse-snatchings in the Lancaster vicinity in April of 1973. Appellant now argues that the pleas were invalid since the record of the colloquy below fails to indicate, inter alia, that appellant understood the nature and the elements of the offenses with which he stood charged. In support of this argument appellant cites our Supreme Court's most recent decision in Commonwealth v. Ingram, 455 Pa. 198 (1974).*fn1

Commonwealth v. Ingram involved a guilty plea colloquy conducted on the record by the trial court which the appellant therein alleged to be insufficient (1) to establish a factual basis for the plea, (2) to establish that the appellant understood the charges against him, and (3) to inform the appellant of his right to be presumed innocent. Our Supreme Court had little difficulty in disposing of the third point in noting that our courts have never required that an instruction on the presumption of innocence be given.

[ 230 Pa. Super. Page 359]

The Court also found that the colloquy and testimony amply demonstrated a factual basis for the plea. The Supreme Court then turned to the appellant's remaining allegation of error -- the trial court's failure to explain to appellant the nature and elements of the crime charged. The Court stated that the trial court explained the crime to the appellant in only the most general terms, not sufficient to demonstrate "that the elements of the crime or crimes charged were outlined in understandable terms." Id. at 204. Therefore, if such instructions were necessary, the guilty plea would have been invalid and the appellant would have been entitled to a new trial. After examining two recent cases on that question, which will be fully discussed below, the Court concluded: "Our decisions in Commonwealth v. Campbell [451 Pa. 465 (1973)], and Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 (1973), both of which dealt with extensive colloquies on this point, imply that such examination is mandatory. We now expressly hold that there is such a requirement." Id.

Thus, there can be no doubt that in order for a guilty plea to be valid if tenderd after Ingram, the record must demonstrate, inter alia, that the crime or crimes charged were explained to the accused in understandable terms and that a factual basis for the plea existed. The question before our court today, however, is whether the requirement that the record indicate the accused's understanding of the nature and elements of the crimes charged applies to guilty plea colloquies which occurred prior to the Ingram decision.*fn2 More specifically, the question is whether Ingram should be applied retroactively or, if not, whether

[ 230 Pa. Super. Page 360]

    charged was either accidental or in self defense. The trial court, prior to accepting the proffered plea of guilty, wisely sought to determine that the defendant understood that he was admitting that the killing was willful and intentional, and not in self-defense. In affirming the lower court's acceptance of the defendant's guilty plea following that colloquy, the Supreme Court did not suggest that an explanation of the elements of the crime, and the defenses thereto, was required in every case prior to the acceptance of a guilty plea. Jackson suggests, at most, that when the evidence indicates that a defense to the crime may exist, the trial court is well-advised to ascertain from the defendant that he knows he is admitting that no such defense exists in fact.

Similarly, Commonwealth v. Campbell did not deal with an ordinary guilty plea situation. The issue in that case was whether the trial court's explanation to the defendant of the mental state required for voluntary manslaughter erroneously misled the defendant, thereby vitiating the intelligence of his guilty plea. Once again in affirming the lower court's acceptance of the guilty plea, the Supreme Court did not suggest that the court was required, in every case, to instruct the defendant on the elements and defenses to the crime or crimes charged. That was not the question before the Court. The Supreme Court only suggested that if the trial court undertakes to so instruct the defendant it must not, through an erroneous statement of the law, aid in the inducement of an unintelligent guilty plea.

Thus, neither the Jackson nor the Campbell case can be construed as establishing the prophylactic rule that the trial court conduct an on-the-record colloquy with the defendant to ascertain that he is aware of the nature and elements of the crime with which he is charged. This conclusion is fortified by an examination

[ 230 Pa. Super. Page 362]

    of Rule 319 (a) and the Comment thereto as it existed both before and after the Court's decisions in Jackson and Campbell.*fn5 While Rule 319 (a) itself remained unaltered, the Comment was revised to include the following:

"It is recommended, however, that at a minimum the judge ask questions to elicit the following information:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?

[ 230 Pa. Super. Page 363]

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he has the right to trial by jury?

(4) Does the defendant understand that he is presumed innocent until he is found guilty?

(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

". . . As to the requirement that the judge ascertain that there is a factual basis for the plea, see Commonwealth v. Maddox, 450 Pa. 406, 300 A.2d 503 (1973), and Commonwealth v. Bernard Jackson, 450 Pa. 417, 299 A.2d 209 (1973)." (Emphasis added.)

Although the Comment states that an inquiry into the factual basis for the guilty plea is required in all cases, citing the Jackson case as authority for that proposition, it leaves the other five areas of inquiry as merely recommendations -- some checkpoints for satisfaction of the underlying and important question of whether "the plea is voluntarily and understandingly tendered." Pa. R. Crim. P. 319(a). Had Jackson and Campbell established the requirement that the colloquy indicate in every case that the defendant understood the nature and elements of the crime charged, the Supreme Court in drafting the Comment certainly would have so indicated as it did with the "factual basis" problem.*fn6 Furthermore, as Ingram makes clear,

[ 230 Pa. Super. Page 364]

    the recommended areas of inquiry which appear in the Comment need not be plumbed by the trial court in every case, for Ingram states the Court has never required that the colloquy treat the presumption of innocence despite the fact that the Comment recommends doing so.

Finally, we add that it is rare to find a situation where the trial court explained the elements of the offense to the accused, because the trial court most often reasonably concludes, after hearing the evidence establishing the "factual basis" for the plea, that both the defendant's attorney and the court itself, by reason of their legal education and experience, are better able to determine whether the facts admitted constitute the crime charged or raise a viable defense. Indeed if a defendant were to withdraw his plea after hearing a simplified statement of the elements of the crime, despite the fact that both the court and his counsel are convinced that the facts clearly establish his guilt, his action would more likely be the result of a misconception of the law rather than an informed judgment of the strength of the Commonwealth's case. The American Bar Association's notable project on Standards Relating to Guilty Pleas does not even hint at such a requirement. Instead, Standard 1.6 provides only that the court should ascertain that there is a factual basis for the plea.

This is not to say that no purpose is served by explaining the elements of the crime to the defendant. At the least such an explanation, along with the other inquiries required, has the salutary effect conveying to the defendant the court's concern for his rights.*fn7 It

[ 230 Pa. Super. Page 365]

    is certainly true that if the defendant is impressed that the court strived to do justice in his case, his disrespect for the law and its institutions will be partially mollified. The question is, however, whether this admirable purpose may be effected by an implication read into the Campbell and Jackson cases, or will be served by its retroactive application under the Ingram case, when so doing would undoubtedly render invalid the majority of the guilty pleas tendered in Pennsylvania during the twelve month period between the Jackson decision and the Ingram case. Furthermore, that every such defendant would seek to have his guilty plea reviewed is virtually a foregone conclusion insofar as the sentence rendered following the guilty plea will establish the maximum punishment he may receive at his new trial, unless subsequent, identifiable conduct warrants an increase in his sentence. North Carolina v. Pearce, 395 U.S. 711 (1969); Commonwealth v. Wright, 444 Pa. 588 (1971). The criminal justice system, already overwrought, cannot afford to invest so much time and energy to reap so small a profit.

Hence, we now hold that in those cases arising prior to Ingram, assuming a factual basis appears on the record, the record as a whole need only demonstrate that the "plea was voluntarily and understandingly tendered." Of course, to insure that the record is sufficient in that respect, the trial court should inquire into those areas indicated in the Comment to Rule 319(a).

Since the inquiry of record in the instant case sufficiently indicates that the guilty plea was voluntarily and understandingly tendered,*fn8 the judgment of sentence of the lower court is affirmed.


Judgment of sentence affirmed.

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