No. 68 E.D. Appeal Docket 1983, Appeal from the Order of the Superior Court entered April 22, 1983 at No. 3223 Phila. 1981 affirming the Order of the Court of Common Pleas, Criminal Division of Chester County at Nos. 157979-1582279 Pa. Super. , 459 A.2nd 31 (1983)
F. Ned Hand, Stuart Suss, Asst. Dist. Attys., for appellant.
Joseph S. Nescio, West Chester, for appellee.
Nix, C.j., and Larsen, Flaherty, Zappala and Papadakos, JJ. McDermott and Hutchinson, JJ., did not participate in the consideration or decision of this case.
The Commonwealth of Pennsylvania appeals a Superior Court order affirming the Chester County Common Pleas Court's grant of Donald Benjamin Middleton's motion to withdraw his plea of guilty to criminal charges.
The facts underlying this appeal are as follows: Middleton was arrested and charged with criminal homicide, kidnapping, robbery, aggravated assault, simple assault, theft of a motor vehicle, unauthorized use of that motor vehicle, and receiving stolen property. On February 26, 1980, pursuant to a plea bargain agreement with the Commonwealth, Middleton entered guilty pleas to a general charge of homicide, and also to the robbery and conspiracy charges, in exchange for the Commonwealth's promise not to seek the death penalty and to nol pros*fn1 all remaining charges. An on-the-record colloquy accompanied the guilty pleas. A degree-of-guilt hearing was held before the Honorable John E. Stively, Jr. of the Chester County Court of Common Pleas, who, on March 11, 1980, adjudged Middleton guilty of murder of the first degree. On May 30, 1980, Middleton moved to withdraw his guilty plea,*fn2 alleging that the plea had not been voluntarily or intelligently tendered. At the hearing on the motion, Middleton testified that his counsel had informed him that he would withdraw from the case if Middleton pled not guilty. The trial court held that this controversy between the defendant and his counsel constituted a "fair and just reason" for the withdrawal of the plea, and the Superior Court affirmed this determination.
There are two tests for determining whether a withdrawal of a guilty plea should be allowed: a pre-sentence test and a post-sentence test. The test for a pre-sentence motion for withdrawal of a guilty plea was articulated by this Court in Commonwealth v. Forbes, 450 Pa. 185, 191, 299 A.2d 268, 271 (1973), where we stated:
In determining whether to grant a pre-sentence motion for withdrawal of a guilty plea, "the test to be applied is fairness and justice". If the trial court finds "any just reason," withdrawal of the plea should be freely permitted, unless the prosecution has been "substantially prejudiced". (citations omitted.)
However, when the trial court considers a post-sentence motion to withdraw a guilty plea, we have held: "It is well-established that 'a showing of prejudice on the order of manifest injustice' is required before withdrawal is properly justified." Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982) (quoting Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973)).
In the instant case, the Commonwealth first argues that although sentence had not, in fact, been imposed on Middleton, the post-sentence test should nevertheless have been applied. The Commonwealth specifically contends that since it had stipulated that it would not seek the death penalty, a sentence of life-imprisonment was mandatory in light of the finding of murder of the first degree at the degree-of-guilt hearing. The reasoning is, therefore, that imposition of sentence on the defendant was a mere formality, and thus the post-sentence test was the proper test to apply to the defendant's motion to withdraw his guilty plea. We disagree. Here, Middleton pled guilty to robbery and conspiracy in addition to homicide; sentence, in fact, had not been imposed for any of these crimes; and, moreover, a sentencing hearing had not yet been conducted. The trial judge had discretion to make the sentences for these offenses run concurrently or consecutively, and sentencing, therefore, was not a mere formality. ...