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COMMONWEALTH PENNSYLVANIA v. DAVID H. EVERETT (09/04/81)

filed: September 4, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
DAVID H. EVERETT, APPELLANT



NOS. 1433 AND 1932 OCTOBER TERM, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Luzerne County, at No. 2680 of 1978.

COUNSEL

Alan Ellis, State College, for appellant.

Michael Butera, Assistant District Attorney, Pittston, for Commonwealth, appellee.

Hester, Cavanaugh and Van der Voort, JJ. Hester, J., files a concurring opinion.

Author: Van Der Voort

[ 290 Pa. Super. Page 347]

Appellant pleaded guilty to a three count information in which he was charged with possession of marijuana,*fn1 possession with intent to deliver,*fn2 and the manufacture of marijuana.*fn3 All charges rose out of a raid of appellant's apartment, conducted by the Pennsylvania State Police. The state police recovered 112 pounds of marijuana, $28,578, in U. S. currency, and paraphernalia related to the manufacture and distribution of marijuana. The Commonwealth in accordance with its agreement with appellant, recommended that if appellant was to be given jail time, he should serve it in the county jail and if eligible for and accepted by such program, be placed in a work-release program. The court accepted appellant's plea and ordered a pre-sentence investigation.

On the charge of possession with intent to deliver, appellant was sentenced to a term of eighteen (18) to thirty-six (36) months incarceration in the county jail; workrelease was recommended if appellant met the conditions of the program. On the count of manufacturing, the court

[ 290 Pa. Super. Page 348]

    imposed a two year period of probation, to run consecutively to the term of imprisonment and any period of parole resulting therefrom.*fn4 The Internal Revenue Service had filed a lien for $27,261.50 against the $28,578 confiscated. The court ordered the remainder to be distributed to a number of charitable organizations.

Appellant filed a motion challenging the validity of his guilty plea. He filed a second motion to vacate the sentence as well as challenging the guilty plea. The court below denied both motions. Appellant then appealed to this Court. On this appeal, appellant attacks the validity of his guilty plea; the propriety of the sentence imposed and the confiscation and apparent forfeiture of the money.

During the guilty plea colloquy, the court initially informed appellant that he could be sentenced to a maximum term of five years and/or fined $15,000 on each of the two counts. A brief discussion occurred concerning an agreement between the appellant and the Commonwealth that the possession with intent to deliver would merge with the manufacturing count. Thereafter, the court revised its statement to indicate that the appellant would only be subjected to one term of five years and/or a fine. Appellant here claims that his plea was invalid because the court sentenced him on two counts, when it had previously indicated he could only be sentenced on the one count.

We agree that this inconsistency entitles appellant to some relief. A defendant must be informed of the maximum punishment he may face before the court can accept his guilty plea. Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978). Here, however, the problem lies not so much with the plea but with the sentencing. The lower court assumed during the colloquy that the charges would merge; ...


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