No. 1414 October Term, 1976, Appeal from Sentence of the Court of Common Pleas of Clinton County, as of April Term, 1975 at No. 25, Crim. Sec.
Gregory V. Smith, Williamsport, for appellant.
J. Michael Williamson, Lock Haven, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, and Jacobs, J., concur in the result. Price and Van der Voort, JJ., dissent.
[ 250 Pa. Super. Page 560]
The dispositive issue on this appeal is whether the lower court abused its discretion in refusing to permit appellant to withdraw his plea of nolo contendere.
Appellant, a medical doctor practicing in Clinton County, was indicted on 54 counts charging him with unlawfully dispensing prescriptions for controlled drugs. On November 12, 1975, appellant pleaded nolo contendere to four counts charging violation of § 13(a)(14) of The Controlled Substance, Drug, Device and Cosmetic Act.*fn1 The substance of those counts related to appellant's dispensing of prescriptions for controlled drugs to undercover agents, the prescriptions being made out in the name of a third person and without the benefit of an examination. The factual basis for appellant's plea was established by appellant's admission of the acts alleged and by the testimony of two doctors, who were qualified as experts, regarding the medical propriety of the acts. After accepting the plea the lower court deferred sentencing pending receipt of a pre-sentence report.
On November 28, 1975, before the sentencing, appellant applied to the court for permission to withdraw his plea so that he could re-plead not guilty and go to trial. After a hearing the court refused the application, and on March 15, 1976, it imposed sentence. This appeal followed.
Pa.R.Crim.P. 320 provides:
At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty*fn2 to be withdrawn and a plea of not guilty substituted.
[ 250 Pa. Super. Page 561]
In enforcing this rule both the Supreme Court and this court have consistently held that a pre-sentence request for permission to withdraw a guilty plea should be liberally granted. Commonwealth v. Woods, 452 Pa. 546, 307 A.2d 880 (1973); Commonwealth v. Morales, 452 Pa. 53, 305 A.2d 11 (1973); Commonwealth v. Santos, 450 Pa. 492, 301 A.2d 829 (1973); Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Boofer, 248 Pa. Super. 431, 375 A.2d 173 (1977). In Forbes the Supreme Court said:
[I]n determining whether to grant a pre-sentence motion for withdrawal of a guilty plea, "the test to be applied by the trial courts is fairness and justice." United States v. Stayton, 408 F.2d 559 (3d Cir. 1969). If the trial court finds "any fair and just reason", withdrawal of the plea before sentence should ...