No. 943 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Div. of Lawrence County at 810 of 1975.
Norman A. Levine, New Castle, for appellant.
Donald E. Williams, District Attorney, New Castle, for Commonwealth, appellee.
Spaeth, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting opinion.
[ 303 Pa. Super. Page 167]
This is an appeal from an order denying a petition to withdraw a guilty plea. Appellant argues that the petition should have been granted because his guilty plea colloquy was deficient in several respects. We agree, and therefore reverse.
Appellant had been charged with rape and was tried in February 1976. The trial ended on February 18, 1976, in a
[ 303 Pa. Super. Page 168]
hung jury. On February 23, 1976, appellant, pursuant to a plea bargain, pleaded guilty to aggravated assault.*fn1
Appellant argues, Appellant's Brief at 9-10, and the Commonwealth admits, Appellee's Brief at 11, that during the colloquy he was not informed of his right to file a petition to withdraw his guilty plea prior to sentencing or of his appellate rights. When the lower court has failed to inform the defendant of his right to file a petition to withdraw a guilty plea, and the consequences of a failure to do so, an invalid waiver of the right to jury trial is conclusively inferred. Commonwealth v. McGarry, 280 Pa. Superior Ct. 527, 529 n.2, 421 A.2d 847, 848 n. 2 (1980) (citing cases). And see, Commonwealth v. Vigue, 279 Pa. Superior Ct. 46, 420 A.2d 736 (1980).
The colloquy was further deficient in that the lower court did not ascertain whether there was a factual basis for the guilty plea. Commonwealth v. Stolle, 254 Pa. Superior Ct. 483, 386 A.2d 53 (1978); Comment, Pa.R.Crim.P. 319. The Commonwealth admits this defect, too, Appellee's Brief at 8-9, but argues that:
It was therefore made clear to the defendant although such clarity does not appear in the plea hearing record because reference was made to a prior record not recited of the nature of the charge and acts of which he was being asked to enter a plea.
This argument echoes the lower court's holding that "[d]ue to the evidence produced at trial the previous week, it was clear that a factual basis for the plea was present and the plea was therefore accepted." Slip op. at 3. We are unable to subscribe to this reasoning, for Pa.R.Crim.P. 319 makes
[ 303 Pa. Super. Page 169]
inquiry into the factual basis for the plea mandatory at the colloquy. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1978). Moreover, the evidence that both the lower court and the Commonwealth refer to as having been produced at the previous trial is not of record. We therefore cannot give it any effect; this rule applies whether the evidence in question is recited in a brief, Marine Bank v. Huhta, 279 Pa. Superior Ct. 130, 420 A.2d 1066 (1980), or in the opinion of the lower court, In re Custody of Frank, 283 Pa. Superior Ct. 229, 423 A.2d 1229 (1980).
Finally, the colloquy was deficient in that the lower court did not inform appellant that the members of the jury had to be unanimous in their decision. This omission was reversible error. Commonwealth v. Dello Buono, 271 Pa. Superior Ct. 572, 414 A.2d 631 (1979); Commonwealth v. Carl, 267 Pa. Superior Ct. 156, 406 A.2d 566 (1979); Commonwealth v. Coxson, 262 Pa. Superior Ct. 14, 396 A.2d 460 (1978).
Given these several deficiencies in the colloquy, we conclude that appellant was entitled to withdraw his plea.
WICKERSHAM, Judge, dissenting:
I would affirm the judgment of sentence.
On October 11, 1975, Robert Reno, appellant herein, was charged in a criminal complaint with the crime of rape, allegedly having had sexual intercourse with a female age 18, without her consent, by force and she not being his spouse, on October 10, 1975, in Shenango Township, Lawrence County. The case came to trial in February of 1976 before the Honorable John F. Henderson, President Judge and a jury with Alfred V. Papa, Esquire representing Robert Reno. The case ended with a "hung jury."
One week later, appellant, Robert Reno, was again before Judge Henderson with his counsel, Mr. Papa and entered into a plea bargain. The following appeared, inter alia, at the plea colloquy:
[ 303 Pa. Super. Page 170]
THE COURT: Mr. Reno, you are charged on an indictment at No. 810 of 1975 with one count of rape, a felony of the first degree. You plead not guilty to these charges and this case was tried last week. At trial, the jury was unable to arrive at a verdict. It has been indicated to the Court now that you are prepared to enter a plea to lesser charges than this offense, is that correct?
MR. PAPA: In Mr. Reno's behalf, that is correct and he can speak ...