September 7, 1984
COMMONWEALTH OF PENNSYLVANIA
KIRK OTTO BENNETT, APPELLANT
NO. 277 HARRISBURG 1983, Appeal from the Order of the Court of Common Pleas of Dauphin County, at No. 443 C.D. 1980.
Before Del Sole, Popovich And Roberts, JJ.
Order reversed and case remanded with instructions to permit Appellant to withdraw his guilty pleas.
The majority states that "[i]t is clear from the record of appellant's guilty plea colloquy that part of the plea agreement was the recommendation that the sentences on robbery and conspiracy be concurrent with the life sentence for murder. The court obviously rejected the plea agreement." Slip Opinion at 3. The majority then concludes that because "[a]ppellant was not informed that the plea agreement would be rejected and was not asked if he wished to withdraw his pleas[, t]he record clearly reveals that Pa.R.Crim.P. 319 was violated in this case." Slip Opinion at 3. I cannot agree.
Pa.R.Crim.P. 319 provides for the following:
"RULE 319. Pleas and Plea Agreements
(a) Generally. Pleas shall be taken in open court. A defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. The judge may refuse to accept a plea of guilty, and shall not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record. If the defendant shall refuse to plead, the court shall enter a plea of not guilty on the defendant's behalf.
(b) Plea Agreements.
(1) The trial judge shall not participate in the plea negotiations preceding an agreement.
(2) When counsel for both sides have arrived at a plea agreement they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.
(3) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.
(c) Murder Cases. In cases in which the imposition of a sentence of death is not authorized, when a defendant enters a plea of guilty to a charge of murder generally, the judge before whom the plea was entered shall alone determine the degree of guilt."
Notwithstanding the case of Commonwealth v. Fazenbaker, Pa. Super. , 375 A.2d 175 (1977), which applied Pa.R.Crim.P. 319, this writer is of the view that a plea bargain which delegates to the trial court the decision of whether a particular sentence should be imposed is different in kind from a plea bargain which does not delegate such a decision to the trial court. Simply stated, a sentencing recommendation to the trial court should be distinguished from a plea bargain that guarantees that a certain sentence will be imposed. In the former case, the plea bargain is open ended and accordingly, puts the defendant on notice that the plea bargain is within the discretion of the trial court. In the latter case, the consideration is closed and puts the defendant on notice that unless the trial court imposes a certain sentence, that defendant is entitled to withdraw his guilty plea.
The record of appellant's guilty plea colloquy presents the classic case of why the disposition of Commonwealth v. Fazenbaker, supra, does not comport with reality.
In the instant case, the record shows the following discussion:
"Q Now, the information says that you had the intent of promoting and facilitating the commission of a robbery and in furtherance of that, you agreed with Jeffery Ross to, in fact, go out and commit this robbery. Do you understand that?
Q Now, robbery, Mr. Bennett, which results in serious bodily injury to the victim carries -- is a felony of the first degree and carries with it a maximum term of imprisonment up to twenty years. Do you understand that?
Q That's what His Honor, Judge Dowling, could impose upon you if he chose to do so. Do you understand that? However, it will be the Commonwealth's recommendation that should that be taken into consideration along with the murder sentence, that the Court hands down and that run concurrent, your robbery sentence, your conspiracy sentence run concurrent, at the same time with the murder sentence? You understand that?
Q But His Honor, Judge Dowling, is under no obligation to do that. Do you understand that?
A Yes. "
Guilty Plea Colloquy at 32. (Emphasis added)
The appellant conceded as much at the post-conviction hearing when he said that "[t]here was to be a recommendation by the District Attorney in which he would request that robbery and conspiracy be made concurrent to life sentence." PCHA Hearing at 8.
In view of the above record evidence, this writer agrees with the trial court "that the District Attorney did fulfill his portion of the plea bargain." Slip Opinion at 1-2.
We often have said that a disappointed expectation of a defendant regarding a sentence is not a ground for invalidating a guilty plea. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973); Commonwealth v. Brown, Pa. Super. , A.2d (1984) (filed June 1, 1984); Commonwealth v. Brown, 242 Pa. Super. 248, 363 A.2d 1253 (1976). Yet the majority invalidates a guilty plea because appellant was "disappointed" in the ultimate sentence which was imposed. Hence, I must dissent.
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