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COMMONWEALTH PENNSYLVANIA v. GERALD JOSEPH CUTE (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD JOSEPH CUTE, APPELLANT



No. 2458 October Term, 1976, Appeal from the Order dismissing the P.C.H.A. petition dated August 17, 1976, in the Court of Common Pleas of Montgomery County, at No. 4985 October Term, 1975., Crim. Sec.

COUNSEL

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

James A. Cunningham and Eric J. Cox, Assistant District Attorneys, Norristown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone and Price, JJ., concur in the result. Jacobs and Van der Voort, JJ., dissent.

Author: Hoffman

[ 249 Pa. Super. Page 495]

Appellant contends that the lower court should have allowed him to withdraw his guilty plea nunc pro tunc because of a defective guilty plea colloquy. Specifically, he complains that the plea was not knowing, intelligent and voluntary because the lower court did not explain the elements of the crime of robbery.*fn1 Because the court failed to explain

[ 249 Pa. Super. Page 496]

    the elements of the offense charged,*fn2 we reverse the order of the lower court and remand for a new trial.

On February 6, 1976, appellant entered a plea of guilty to three indictments: No. 4985 October Term, 1975, charging robbery, theft,*fn3 terroristic threats,*fn4 and possession of instruments of crime;*fn5 No. 4641 October Term, 1975, charging burglary*fn6 and criminal attempt;*fn7 and No. 4665 October Term, 1975, charging robbery and theft. The instant appeal concerns only the judgment of sentence imposed upon No. 4985. Pursuant to a plea bargain, appellant, who was on parole in connection with two prior burglary convictions, agreed to waive formal revocation proceedings. He also agreed to plead guilty to all the foregoing charges in return for the assistant district attorney's recommendation of a concurrent sentence of 6 to 15 years' imprisonment on all felonies of the first degree and a consecutive sentence of 6 to 12 months' imprisonment on the parole revocations.

At the request of the court, appellant's counsel interrogated his client to establish that the plea was voluntary. Appellant's counsel inquired about the specific crimes to which appellant was pleading guilty:

"Q. And Mr. Cute, do you realize that you're charged with a number of indictments today. And I would like to go through them for a few minutes. The first group of indictments is indexed at 4641, October, 1975, charging you with the crime of burglary, and the crime of criminal attempt, on

[ 249 Pa. Super. Page 497]

September 24, 1975. And that by pleading guilty you are admitting your involvement in these crimes.

"A. Yes.

"Q. This is the Springfield Township incident involving the burglaries of Dr. Shore's house and office?

"A. Yes.

"Q. And, Mr. Cute, I would also like to refer you to a number of bills of indictment, Nos. 4661, October Term, 1975. Once again this is on October 24, 1975, charging you with the crime of robbery and theft of movable property. And this involved an ...


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