Albert C. Oehrle, Norristown, for appellant.
Ross Weiss, First Assistant District Attorney, Elkins Park, and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Price, J., dissents.
[ 255 Pa. Super. Page 227]
On April 7, 1976, appellant pleaded guilty to 23 informations charging him with election irregularities during absentee balloting in the Borough of Norristown prior to the primary election of May, 1975. At that time appellant was an incumbent councilman seeking re-election. On this appeal appellant challenges the lawfulness of his sentence and the validity of his plea.
The informations fell into four categories: unlawful interference with an elector when marking his ballot, Election Code, Act of June 3, 1937, P.L. 1333, art. XVIII, § 1830, 25 P.S. § 3530; possession of an elector's absentee ballot outside the polling place, Election Code, supra, 25 P.S. § 3516; conspiracy to prevent a free and fair primary election, Election Code, supra, 25 P.S. § 3527; and criminal conspiracy,
[ 255 Pa. Super. Page 228]
Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 903.
At the time of the guilty plea, the court had appellant's counsel conduct, on the record, a colloquy with appellant that covered the permissible range of sentences and fines for the offenses charged. See Pa.R.Crim.P. 319(a). After accepting appellant's plea of guilty to the offenses charged, the court ordered appellant released on probation for two years, and also ordered him to pay costs and a $50.00 fine, and to render volunteer service for six hours a week. Then the court called a witness, the Chief Clerk of the Voter Registration Commission, who had brought appellant's voter registration slip to the court room. After reading into the record those provisions of the Election Code that provide that anyone who wilfully violates any provision of the Code shall be disfranchised for four years,*fn1 the court ordered the witness to mark appellant's registration card "canceled." Appellant had never been told, on the record, of this possibility.
Appellant first argues that while everything else constituted a valid sentence, the disfranchisement was outside the power of the court because it was not included in the express terms of the penalty language of the statutes on the basis of which the information was drawn. For authority he cites Commonwealth v. Kline, 235 Pa. Super. 156, 340 A.2d 562 (1975). In Kline, the defendant was charged with driving while under the influence of alcohol. The court
[ 255 Pa. Super. Page 229]
fined him and ordered him to forward his operator's license to the county clerk of courts. This court viewed this order as in effect a suspension of the defendant's operating privileges, and vacated it because suspension was not provided for "within the penalty paragraph of the statute in question . . . ." 235 Pa. Super. 158, 340 A.2d 563. This court further noted that under the Vehicle Code, the suspension of operating privileges is a power that originates with the Secretary of Transportation of the Commonwealth.
Appellant apparently would have us read Kline literally. We think it clear, however, that the crucial characteristic of Kline was, not that the enabling language conferring the power to suspend was not found in a given paragraph, but that the power to suspend was nowhere conferred on the courts, instead being conferred on the secretary. Here, the enabling language conferring the power to disfranchise appears in the Election Code, 25 P.S. § 3552, and specifies that disfranchisement shall be "in addition to any of the penalties herein provided for." Thus, unlike the situation presented ...