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COMMONWEALTH PENNSYLVANIA v. GEORGE ORTIZ (07/20/84)

submitted: July 20, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE ORTIZ, APPELLANT



No. 01079 Philadelphia, 1983, Appeal from Order, Court of Common Pleas, Criminal Division, Berks County, No. 80179701

COUNSEL

Michael J. Cammarano, Reading, for appellant.

Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.

Cavanaugh, McEwen and Montgomery, JJ. McEwen, J., filed a dissenting opinion.

Author: Cavanaugh

[ 334 Pa. Super. Page 118]

This appeal is from an order denying appellant's presentence petition to withdraw a guilty plea. We must reverse judgment of sentence and remand for further proceedings.

On December 7, 1980, appellant was arrested on charges of robbery, simple assault, aggravated assault, theft, receiving stolen property and criminal conspiracy. On November 9, 1981, appellant tendered a guilty plea to a single charge

[ 334 Pa. Super. Page 119]

    of robbery*fn1 pursuant to a plea agreement which called for a sentence of three and one-half to ten years imprisonment and dismissal of the remaining charges. N.T. 11/9/81 at 11-12. On March 18, 1982, before sentence had been imposed, appellant petitioned to withdraw his guilty plea, claiming he was innocent of the charge to which he had pled guilty and had been "affected by personal difficulties" at the time the ill-considered plea was entered. On June 10, 1982, a hearing was held on appellant's petition to withdraw at which appellant testified that during the time his plea had been negotiated, tendered and accepted by the court, he had been under the influence of drugs. He further testified that he could not remember signing the plea agreement which admittedly bore his signature, and had only a sketchy recollection of the guilty plea proceeding, which had been transcribed. However, after considering the thoroughness of the guilty plea colloquy conducted on November 9, 1981, the lower court concluded that appellant had not been under the influence of drugs at the time, but rather was mentally competent and had entered his guilty plea knowingly and voluntarily. The lower court went on to conclude that appellant had offered "absolutely no basis" for withdrawal of his guilty plea. Slip op. at 5. After sentencing and denial of subsequent motions, this appeal followed.

[ 334 Pa. Super. Page 120]

Rule 320 of the Pennsylvania Rules of Criminal Procedure provides that "[a]t any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted." The lower court correctly states the law which has developed under this rule as follows: "A defendant does not have an absolute right, even before sentencing, to withdraw a guilty plea once tendered and accepted by the court. He must have a 'fair and just' reason. Commonwealth v. Mosley, 283 Pa. Super. 28, 423 A.2d 427 (1980)." Slip op. at 5. On the other hand, once a "fair and just" reason has been made out, withdrawal should be liberally permitted, unless the Commonwealth has been substantially prejudiced. Commonwealth Page 120} v. Boofer, 248 Pa. Super. 431, 375 A.2d 173 (1977).

Here, appellant has supported his request to withdraw his guilty plea by asserting his innocence.*fn2 Such an assertion has consistently been held to be a "fair and just" reason for presentence withdrawal of a guilty plea. Commonwealth v. Carelli, 308 Pa. Super. 522, 454 A.2d 1020 (1982); Commonwealth v. Whittall, 304 Pa. Super. 258, 450 A.2d 669 (1982); Commonwealth v. Boofer, supra. No evidence of prejudice to the Commonwealth was offered at the hearing on appellant's petition to withdraw and the lower court made no finding on this point.*fn3 Under these circumstances, the lower court's denial of appellant's petition to withdraw was an abuse of discretion. Commonwealth v. Carelli, supra; Commonwealth v. Whittall, supra; Commonwealth v. Boofer, supra.

Accordingly, judgment of sentence is reversed and the record is remanded with instructions to permit appellant to withdraw his guilty ...


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