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COMMONWEALTH PENNSYLVANIA v. STEVE K. NELSON (09/16/83)

filed: September 16, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
STEVE K. NELSON



No. 3270 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Montgomery County, Criminal Division, No. 1640-1981.

COUNSEL

Joseph John Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellant.

Marc Robert Steinberg, Souderton, for appellee.

Cercone, President Judge, and Johnson and Montemuro, JJ.

Author: Montemuro

[ 319 Pa. Super. Page 68]

The Commonwealth takes this appeal from an order of the Court of Common Pleas, Montgomery County, granting the appellee's motion to withdraw his guilty plea subsequent to the imposition of sentence. The Commonwealth contends that the trial court abused its discretion in doing so, in that the record is devoid of circumstances which would substantiate a finding of manifest injustice. We agree, and reverse.

On May 2, 1981, the appellee, Steve K. Nelson, was arrested and charged with criminal attempt,*fn1 simple assault,*fn2 recklessly endangering another person,*fn3 indecent assault,*fn4

[ 319 Pa. Super. Page 69]

    indecent exposure,*fn5 burglary,*fn6 unlawful restraint*fn7 and criminal trespass.*fn8 These charges were filed against the appellee as a result of accusations made by a woman who identified the appellee as the man who had broken into her apartment and who had confronted and assaulted her. That same day, the appellee contacted an attorney, through a friend, and hired him to handle his defense.

On June 2, 1981, a preliminary hearing was held, where most of the crimes originally charged were dismissed.

On August 31, 1981, appellee pled guilty to criminal trespass before the Honorable Vincent A. Cirillo. He filled out a written form titled "Guilty Plea" containing five (5) pages of thirty-four (34) questions. He initialed each page, except page four (4), and along with his attorney, he signed it. In addition to the written form, the trial court conducted a colloquy basically to inquire whether the appellee understood the charges, the elements, whether he had sufficient time to answer the questions and whether he understood those questions. The appellee stated that he understood.

On September 10, 1981, the appellee filed a motion to withdraw his guilty plea, represented by different counsel. A hearing on this motion was held on December 11, 1981, with the Honorable Vincent A. Cirillo again presiding. On December 14, 1981, the trial court entered its order permitting the appellee to withdraw his guilty plea.*fn9 This appeal followed.

[ 319 Pa. Super. Page 70]

Appellee argues that his plea was involuntary because he never once failed to assert his innocence to his attorney, that his counsel was unprepared to go to trial because of his failure to interview witnesses in order to pursue appellee's purported alibi, and that counsel misled him, up until the day he pled guilty, into believing that his case would be tried. Appellee says that his attorney scared him into pleading guilty. Appellee also attacks the constitutional validity of the written guilty plea form which he initialed and signed, and which he contends is insufficient without a full scale verbal colloquy conducted by the court pursuant to Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). In appellee's view, the verbal exchange is the only means by which a court can discern whether or not a plea is knowing and voluntary, and that, in any event, in this case, he did not complete the written form. He left one question unanswered.*fn10

[ 319 Pa. Super. Page 71]

It is well settled in Pennsylvania that to properly withdraw a guilty plea after sentence, a petitioner must prove to the trial court that withdrawal is necessary to correct a manifest injustice. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). Examples of manifest injustice contained in The Standards Relating to Pleas of Guilty (2d ed. 1980), Standard 14-2.1(b)(ii)(A) and (C) have been approved in this Commonwealth.*fn11 Commonwealth v. Page 71} Shaffer, 498 Pa. 342, 346 n. 2, 446 A.2d 591, 593 n. 2 (1982). These standards require withdrawal of a guilty plea "to correct a manifest injustice" where the defendant has been subjected to ineffective assistance of counsel and where the plea is involuntary or that it was entered without knowledge of the charge which, sub judice, appellee argues serves as a basis for the withdrawal of his guilty plea. Our task is to review the record to determine whether or not there are sufficient facts to support these justifications.

First, with recent case law in mind, we have no difficulty in concluding that the extensive written guilty plea form and the supplemental oral colloquy were more than adequate to confirm the trial court's belief that the appellee's plea of guilty was voluntary. See, Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982); Commonwealth v. Shaffer, supra. Accord, Commonwealth v. Smith, 498 Pa. 661, 450 A.2d 973 (1982). During the colloquy, the court inquired into the following area:

THE COURT: How far did you go in school?

MR. NELSON: Twelfth grade, sir.

THE COURT: What school did you go to?

MR. NELSON: North Penn High ...


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