No. 709 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Trial Division, Criminal Section, at No. 209-77.
George B. Ditter, Assistant Public Defender, Norristown, for appellant.
James A. Cunningham, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cercone, Spaeth and Lipez, JJ. Spaeth, J., files a concurring opinion.
[ 269 Pa. Super. Page 503]
Appellant was sentenced to six months' to two years' imprisonment after pleading guilty to an Information that charged Retail Theft. On this appeal, she challenges the legality of the sentence. We vacate the judgment of sentence and remand for resentencing.
The Information on which appellant was sentenced stated the offense as Retail Theft. It gave no indication that this was, in fact, appellant's third offense. The Information as drawn was regular on its face and in no wise defective. In the course of the guilty plea colloquy, defense counsel told appellant, on the record, that this was her third offense, and that, as a third degree felony, a conviction carried with it a maximum fine of $15,000 and a maximum prison term of seven years.
[ 269 Pa. Super. Page 504]
Retail Theft*fn1 is an offense "different in kind and character from" Retail Theft, Third Offense.*fn2 Commonwealth v. Herstine, 264 Pa. Super. 414, 399 A.2d 1118 (1979); see Commonwealth v. Moses, 441 Pa. 145, 271 A.2d 339 (1970). It is a constitutional principle that a defendant "cannot be convicted of an offense which is not the accusation made against him or any constituent thereof." Commonwealth Page 504} v. Komatowski, 347 Pa. 445, 453, 32 A.2d 905, 909 (1943). "Central to the plea and foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment." Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
Since the information in the instant case charged only Retail Theft, a summary offense, the maximum possible sentence was ninety days. 18 Pa.C.S. § 1105. Hence the imposition of a six months to two year sentence (which would have been within legal limits for Retail Theft, third offense, 18 Pa.C.S. § 1103(3)) was improper. Statements made during the colloquy cannot change the offense charged in the Information and are therefore irrelevant to the issue of legality of appellant's sentence.
The court below and the Commonwealth maintain that the issue is whether appellant has, by pleading guilty, waived any challenge to alleged defects on the face of the information. The problem, however, is not one of waiver of defects. As pointed out above, the Information to which appellant pleaded guilty was regular on its face. The question was one of legality of sentence. Such an issue may not be waived, and was thus properly before us on this appeal. Commonwealth v. Greer, 457 Pa. 646, 647, 326 A.2d 338, 339 (1974).
Judgment of sentence vacated and case remanded for ...