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COMMONWEALTH PENNSYLVANIA v. ALBERT HAYES (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
ALBERT HAYES, APPELLANT



No. 1746 October Term, 1975 Appeal from judgment of sentence of Cirillo, J., dated June 24, 1975, in the Court of Common Pleas of Montgomery County, Pennsylvania, No. 1731 April Term, 1975.

COUNSEL

Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, Willow Grove, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion. Spaeth, J., files a dissenting opinion.

Author: Watkins

[ 245 Pa. Super. Page 522]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Montgomery County by the defendant-appellant, Albert Hayes, after the entry of a plea of "nolo contendere" to four bills of indictment charging forgery, theft by deception and conspiracy to commit forgery. He was sentenced under one bill of indictment

[ 245 Pa. Super. Page 523]

    charging forgery to undergo imprisonment for not less than two years nor more than six years, and a term of three months to twenty-three months on the other indictment charging forgery, such sentence to be consecutive. Sentence was suspended in the other two bills of indictment. The appellant had a long criminal record.

The only issue raised on appeal is that the plea was not entered voluntarily and intelligently in that the colloquy was inadequate under the standards established by Rule 319 of the Pennsylvania Rules of Criminal Procedure and the cases of Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) and Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973).

At the outset we recognize that a plea of "nolo contendere" is to be treated the same as a guilty plea. Commonwealth v. Warner, 228 Pa. Super. 31, 324 A.2d 362 (1974). But because it is the unusual plea of "nolo contendere" that says, in effect, "I will not contest" and admits the facts charged, it appears to be a clear indication that a full discussion was held with counsel before its entry and the very fact of the entry of this type plea indicates a voluntary and intelligent approach to the plea.

Commonwealth v. Ingram, supra, requires that it appear on the record that the defendant understand the nature of the charges and this be demonstrated by an explanation of the elements of the charged offenses in terms that he can understand appearing on the record.

The appellant forged the name of another on a check and a deposit slip. The court below was fully satisfied that the appellant knowingly and voluntarily entered the plea to all bills. He was represented by counsel and the record discloses that he was pleading of his own free will, that no threats had been made to him and that he had sufficient time to confer with counsel. The court informed the appellant of the nature of the charges in language

[ 245 Pa. Super. Page 524]

    he could understand, the possible sentences, the right to a trial by jury and other rights in a lengthy colloquy and determined that the plea was intelligently and voluntarily entered.

The record reveals that the court informed the appellant that he was charged with altering a check in the amount of $450 payable to William Jordan and signed by Barry Sherman and that he was charged with "altering or uttering a check in the amount of $350, a withdrawal slip of William Jordan." He was also informed that he was charged with conspiracy with one Barry Sherman to commit the crimes. When questioned as to whether he understood the nature of the charges against him the appellant answered "yes". Although he was obviously informed of the acts charged he now contends that the court below committed reversible error when it did not define the elements of the crimes with which he was charged.

Forgery is defined in part in 18 Pa.C.S.A. ยง 4101 as follows:

"(a) Offense defined -- A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:

"(1) alters any writing of another without his authority: . . ."

Since the appellant was specifically informed that he was charged with "altering" a check for $450 payable to a specific individual and signed by Barry Sherman it is difficult to conceive of the defendant not understanding such simple language of wrongdoing and also difficult to conceive ...


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