Alan Ellis, State College, for appellants.
James E. Davis, District Attorney, Tunkhannock, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., dissents and would remand for a hearing to determine whether or not the guilty plea was voluntarily and knowingly made. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 210]
Appellants*fn1 contend that their guilty pleas were not voluntarily and knowingly entered because (1) a printed questionnaire and information sheet may not supplement an on-the-record guilty plea colloquy and, (2) even if such forms may supplement a guilty plea colloquy, the record does not establish that appellants knew the essential elements of the right to jury trial. We agree with appellants' second contention and, consequently, we reverse the lower court.
On April 9, 1976, pursuant to negotiated bargains, appellants each pleaded guilty to one count of delivery of a
[ 253 Pa. Super. Page 211]
controlled dangerous substance.*fn2 On May 13, 1976, the Court of Common Pleas of Wyoming County sentenced each appellant to restitution of $185.00 to the Bureau of Drug Control, a fine of $1000.00 plus the costs of prosecution, and a prison term of not less than one and not more than three years. Subsequently, on June 21, 1976, appellants filed P.C.H.A. petitions*fn3 in which they alleged that the guilty were not voluntarily and knowingly entered because the lower court failed to establish that appellants understood the essential elements of the right to trial by jury. On July 30, 1976, appellants petitioned the lower court for leave to withdraw the guilty pleas nunc pro tunc.*fn4 The court denied the petitions to withdraw on November 1, 1976. This appeal followed.
Appellants first contend that a written questionaire and information sheet outlining the rights being waived may not supplement the on-the-record guilty plea colloquy required by Rule 319 of the Pennsylvania Rules of Criminal Procedure.*fn5 In the instant case, we find that the record as a whole, including the guilty plea colloquy and the written
[ 253 Pa. Super. Page 212]
forms, did not establish that appellants' pleas were voluntarily and knowingly entered. Consequently, we do not reach the broader issue of whether Rule 319(a) permits such written forms to supplement an on-the-record colloquy.
Appellants contend that the record does not establish that the guilty pleas were voluntarily and knowingly entered because it does not reflect whether appellants understood the essential elements of the right to trial by jury. Specifically, appellants maintain that the record at no point demonstrates that appellants understood that the right to trial by jury encompasses the right to a unanimous verdict. We agree.
Rule 319(a) provides that "a judge . . . shall not accept [a plea of guilty] unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly made. Such inquiry shall appeal on the record." The ...