No. 223 April Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Blair County at No. CA333 of 1978.
James V. McGough, Altoona, for appellant.
Thomas G. Peoples, Jr., District Attorney, Hollidaysburg, for Commonwealth, appellee.
Price, Cavanaugh and Watkins, JJ. Price, J., concurs in the result.
[ 275 Pa. Super. Page 327]
On October 23, 1978, appellant Jack Ammon came to trial before a jury in Blair County on charges of kidnapping, involuntary deviate sexual intercourse, corruption of minors, indecent assault and operating under the influence of drugs or alcohol. After one day of trial on the morning of October 24, 1978, appellant's counsel advised the prosecutor that his client desired to submit a plea of nolo contendere to the charges of kidnapping and involuntary deviate sexual intercourse. The court, after having been so advised, conducted a colloquy with appellant and thereafter accepted the plea and deferred sentencing in order to obtain a presentence report. Within ten days appellant filed a petition to withdraw his plea and at the same time his counsel petitioned to withdraw. The court appointed substitute counsel in order to avoid a conflict of interest. On January 8, 1979, a hearing was conducted on the application to withdraw the plea. The petition was denied, and on January 19, 1979, appellant was sentenced to consecutive sentences of not less than eight nor more than sixteen years on the kidnapping and involuntary deviate sexual intercourse charges.*fn1 On February 7, 1979, the defendant's motion challenging the denial of the presentence motion to withdraw his plea of nolo contendere was denied, as was his motion which attacked the sentence as excessive. On this appeal we are asked to decide whether appellant should have been permitted to withdraw his plea of nolo contendere prior to the sentencing and whether the sentence is excessive or unlawful under the circumstances of this case.
For purposes of this review a plea of nolo contendere is treated the same as a plea of guilty. Com. v. West, 250 Pa. Super. 557, 378 A.2d 1289 (1977); Com. v. Hayes, 245 Pa. Super. 521, 369 A.2d 750 (1976). The right to withdraw a plea before sentencing rests initially in the discretion of the trial court. Pa.R.Crim.Procedure § 320 provides:
[ 275 Pa. Super. Page 328]
At any time before sentenc[ing], the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.
In Com. v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), our Supreme Court stated that "although there is no absolute right to withdraw a guilty plea, properly received by a trial court, it is clear that a request made BEFORE sentencing . . . should be liberally allowed" 450 Pa. at 190, 299 A.2d at 271 (emphasis in original). Forbes and many subsequent Pennsylvania cases have relied upon the ABA Standards in determining the issue of withdrawal of pleas.*fn2
The ABA Standards provide:
(a) The court should allow the defendant to withdraw his plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal ...