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decided: May 30, 1980.


No. 219 January Term, 1978, On Appeal from Order of the Superior Court of Pennsylvania, No. 514 October Term, 1977, dated December 28, 1977, affirming Order of the Court of Common Pleas, Northampton County, Criminal Division - 280 October Term, 1974, dated November 2, 1976, Pursuant to Grant of Petition for Allowance of Appeal dated May 12, 1978.


Terence L. Faul, Bangor, for appellant.

James J. Narlesky, Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Larsen

[ 489 Pa. Page 529]


Appellant, Vincent Santiago, entered pleas of guilty to charges of robbery, aggravated assault, and conspiracy. Appellant was sentenced to a term of imprisonment of seven and one-half to sixteen years.*fn1 On appeal to the Superior Court from the judgment of sentence, appellant alleged that his guilty plea to the charge of robbery was not knowingly and intelligently entered because counsel was ineffective in failing to inform appellant that intoxication could negate an element of the robbery offense. The Superior Court remanded to allow appellant an opportunity to file a petition to withdraw his guilty plea and for a hearing thereon to determine "first whether counsel was aware of appellant's intoxication and second whether counsel's actions in light of knowledge of the intoxication had any reasonable basis designed to effectuate his client's interests." Commonwealth v. Santiago, 240 Pa. Super. 63, 361 A.2d 732 (1976).*fn2

Appellant thereafter filed a petition to withdraw his guilty plea. Following an evidentiary hearing, the trial court entered an order denying appellant's petition. In a 4-3 decision, the Superior Court affirmed. We granted appellant's petition for allowance of appeal.

The record reveals that appellant told his counsel on at least two separate occasions that he had no recollection of

[ 489 Pa. Page 530]

    the criminal incident because he had been drinking heavily. Counsel responded that appellant's alleged intoxication was irrelevant since intoxication would negate an element of an offense only in homicide cases.*fn3 This advice was erroneous since, at the time of appellant's guilty plea, which was entered on February 25, 1975, Section 308 of the Crimes Code, 18 Pa.C.S.A. § 308 (effective June 6, 1973), provided that

"Intoxication or drugged condition are not, as such, defenses to a criminal charge; but in any prosecution for any offense, evidence of intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to negative an element of the offense." (Emphasis supplied)*fn4

[ 489 Pa. Page 531]

One element of the offense of robbery, as defined in the Crimes Code, 18 Pa.C.S.A. § 3701 (Supp.1979-80), is the commission of a theft. Theft requires that a person unlawfully take, or exercise unlawful control over, the property of another with the specific intent to deprive him thereof. 18 Pa.C.S.A. § 3921(a) (Supp.1979-80); Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975). In the instant case, intoxication could have negated the specific intent element of the robbery offense. Counsel's erroneous advice thus had the effect of inducing appellant to plead guilty even though one of the elements of the crime may have been absent.*fn5 We therefore conclude that appellant's guilty plea was not knowingly and intelligently entered; hence appellant's guilty plea should be withdrawn and the case remanded for a new trial on the robbery charge.

Since the trial court imposed a single consolidated sentence for all three crimes (robbery, aggravated assault and conspiracy), we also remand for resentencing on the aggravated assault and conspiracy offenses without reference to the robbery offense.

The order of the Superior Court is reversed and the case is remanded for proceedings consistent with this opinion.

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