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COMMONWEALTH PENNSYLVANIA v. RICKEY ZUBER (03/17/76)

decided: March 17, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
RICKEY ZUBER, APPELLANT



COUNSEL

Kairys & Rudovsky, David Rudovsky, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, Roberts and Pomeroy, JJ., joined in a dissenting opinion.

Author: Jones

[ 466 Pa. Page 455]

OPINION OF THE COURT

Appellant, Rickey Zuber, was arrested on May 4, 1973, and charged with the murder of one Ronald Hill. At the time of his arrest, appellant was on parole, having served

[ 466 Pa. Page 456]

    seven months of a sentence of three months to five years for a prior conviction in 1971 on charges of aggravated robbery. Counsel was appointed to represent Zuber in his murder trial and, following the denial of a pre-trial motion to suppress a confession, counsel entered into plea bargain negotiations with the assistant district attorney assigned to the case. The result of said negotiations was a promise by the Commonwealth to recommend a sentence of seven to fifteen years, and further, that the Commonwealth would join with defense counsel in a request to the State Board of Parole that the new sentence run concurrently with appellant's "backtime" of four and one-half years. The assistant district attorney stated the terms of this agreement in open court, whereupon appellant entered a plea of guilty to murder generally. The court reiterated the terms of the agreement for the record and, accepting the Commonwealth's recommendation, imposed a sentence of seven to fifteen years' imprisonment.

On this post-conviction appeal,*fn1 appellant claims that his plea was "not knowingly or intelligently entered, nor did [he] have an understanding of its nature and consequences." In support of this, appellant asserts that his plea was induced by the specific promise made by the Commonwealth, in addition to the recommended sentence, concerning the "back time" owed on the earlier aggravated robbery conviction.

[ 466 Pa. Page 457]

Appellant correctly states that said promise by the Commonwealth was a false and empty one since the law is quite clear that a parole violator convicted and sentenced to prison for another offense must serve his or her back time and the new sentence in consecutive order. See Act of June 19, 1911, P.L. 1055, § 10, as amended, 61 P.S. § 305; Act of August 6, 1941, P.L. 861, § 21.1, as amended, 61 P.S. § 331.21a; Commonwealth v. Draper, 222 Pa. Super. 26, 293 A.2d 614 (1972). The Commonwealth concedes in its brief to this Court "that under the law of Pennsylvania in effect at the time appellant was sentenced, neither a court nor the Parole Board had the power to order that a 'back time' and a 'front time' sentence be served concurrently." The Commonwealth argues, however, that the essence of the bargain can still be fulfilled in that the Parole Board is statutorily authorized "to re-parole a convicted parole violator at anytime from a 'back time sentence', so that he can then begin to serve the sentence imposed on his new conviction."*fn2

We do not agree with the Commonwealth that such "hindsighted" relief would suffice to make an otherwise invalid plea constitutional. Instead, we believe that the appropriate remedy instantly is to provide appellant with the benefit of his bargain and, to that end, remand to the court below for the purpose of modifying appellant's sentence in accordance with this opinion.

While it is true that the practice of plea bargaining is looked upon with favor, Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966), the integrity of our judicial process demands that certain safeguards be stringently adhered to so that the resultant plea as entered by a defendant and accepted by the trial court will ...


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