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COMMONWEALTH PENNSYLVANIA v. JEFFREY FAZENBAKER (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
JEFFREY FAZENBAKER, APPELLANT



Appeal from the Judgment of Sentence of Dec. 17, 1975, and the Order of Dec. 31, 1975, denying the Application to Withdraw Plea of Guilty of the Court of Common Pleas of Lawrence County, Penna., Crim. Div., at No. 518A of 1975.

COUNSEL

William G. Cohen, New Castle, for appellant.

No appearance entered nor brief submitted for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Van der Voort, J., dissents.

Author: Spaeth

[ 248 Pa. Super. Page 435]

On August 14, 1975, appellant, then eighteen years old, appeared in court and pleaded guilty to a charge of receiving stolen property.*fn1 The charge arose out of the theft of some tools from the automobile shop of the local high school. Appellant had been charged with burglary,*fn2 but pursuant to a negotiated plea agreement between appellant, his counsel, and a representative of the District Attorney's office, appellant agreed to plead guilty to the lesser charge of receiving stolen property, the Commonwealth agreeing in return to apply to the court for a nolle prosequi on the burglary charge and to recommend to the court that it impose a term of probation on the receiving charge. The court accepted appellant's guilty plea and continued the case for a sentencing hearing. On December 17, 1975, the court sentenced appellant to a six to eighteen month term of imprisonment. Appellant immediately petitioned the court for permission to withdraw his guilty plea. The court denied the petition, and this appeal followed.

The procedure that must be followed by a court in accepting or rejecting a guilty plea is specified in Pa.R.Crim.P. 319:

(a) Generally. A defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. The judge may refuse to accept a plea of guilty, and shall

[ 248 Pa. Super. Page 436]

    not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record.

(b) Plea agreements.

(1) The trial judge shall not participate in the plea negotiations preceding an agreement.

(2) When counsel for both sides have arrived at a plea agreement they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record ...


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