No. 80-3-823, Appeal from the Order of the Court of Common Pleas of Luzerne County, Pennsylvania at No. 506 of 1979
Ronald J. Wydo, Wilkes-Barre (court-appointed), for appellant.
Chester B. Muroski, Dist. Atty., for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. McDermott, J., joins the Majority Opinion and files a Concurring Opinion.
Appellant, Robert Martinez, and his co-defendant were charged with murder of the first degree, robbery and conspiracy in the beating death of John Charles Kenvin. A negotiated plea bargain resulted in a change of plea to guilty of murder of the third degree and robbery. The conspiracy charge was nol prossed and appellant was sentenced on June 27, 1979 in accordance with the plea bargain, ten to twenty years for murder of the third degree and ten to twenty years for robbery to run concurrent with the murder sentence. The plea bargain left to the court the decision whether the robbery sentence should run concurrent with or consecutive to the murder sentence.
This is an appeal from the denial of a hearing on appellant's petition to withdraw his plea of guilty*fn1 filed August 8, 1979. The record establishes that no recitation of the elements of the crimes or explanation of malice as an element of murder of the third degree was made during the plea colloquy as mandated by Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). However, we do not deem this oversight to be fatal on the record, as the circumstances surrounding the plea bespeak a voluntary and intelligent plea.
We addressed a similar case in our recent opinion in Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982)
(herein Shaffer). In Shaffer, we emphasized that while lack of knowledge of the charges constitutes "manifest injustice" requiring withdrawal of the plea even after sentencing, Shaffer at 593, n. 2, an esoteric explanation of the elements of the crime is not necessarily a prerequisite to constitutional validity of a guilty plea in all circumstances. The "true constitutional imperative is that the defendant receive 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.'" Shaffer at 595, quoting Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108, 114 (1976). Whether notice has been adequately imparted may be determined from the totality of the circumstances attendant upon the plea, Shaffer at 595, see also Commonwealth v. Morales, 452 Pa. 53, 305 A.2d 11 (1973), Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968). Therefore, in addressing appellant's claim of manifest injustice requiring withdrawal of the plea, Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973) we will review all circumstances surrounding the entry of the plea.
A lengthy colloquy took place which included but was not limited to: the age and educational background of the defendants; whether defendants were under the influence of alcohol or drugs; the rights waived by pleading guilty including the presumption of innocence, the right to a jury trial by members of the community and the need for a unanimous verdict; the factual basis for the plea; the nature of the charges; the terms of the plea bargain agreement and the permissible range of sentences; the defenses and motions waived by pleading guilty and grounds for appeal. The appellant was repeatedly reminded that only if he were entering the plea voluntarily could the plea be accepted by the court, and that he was free to change his mind up until the court actually accepted the plea without suffering recriminations.
During the colloquy this specific exchange established the charges in question and the factual basis for the charges:
THE COURT: You're both charged with on January 16, 1979, that you did cause serious bodily injury to John Charles Kenvin and that you did take his ...