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filed: March 1, 1985.


No. 00677 Philadelphia, 1982, Appeal from Judgment of Sentence, Court of Common Pleas, Criminal Division, Delaware County, No. 3325 of 1981


Robert F. Pappano, Chester, for appellant.

Helen Kane, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Cavanaugh, Wieand, McEwen, Cirillo, Del Sole, Johnson, Popovich and Cercone, JJ.*fn* Spaeth, President Judge, files concurring opinion. Cercone, J., did not participate in the consideration or decision of this case.

Author: Cavanaugh

[ 340 Pa. Super. Page 12]

Appellant, Gerald L. Cappelli, seeks to set aside his judgment of sentence on the grounds that (1) the trial court erred in refusing his motion to reconsider sentence and withdraw his guilty plea without a hearing; (2) he was denied effective assistance of counsel; (3) the lower court erred in not assigning sufficient and adequate reasons for the sentence imposed; and, (4) the sentence imposed was manifestly excessive. We find no merit to any of these contentions and, therefore, affirm.

We may consider the first and second claims together since they are related. It is claimed that the court erred in failing to provide a hearing upon his post-sentence petition to withdraw his guilty plea. Conjunctively, it is claimed that trial counsel (different from present appellate counsel) was ineffective in that he "had indicated, prior to the entry of the guilty plea" that appellant would receive a sentence which was considerably less than the sentence actually received. Appellate counsel asserts that if there had been a hearing on the motion to withdraw the guilty plea this point would have been established.

[ 340 Pa. Super. Page 13]

We first observe that the challenge to the guilty plea was made after sentencing and that, therefore, the standard for determination of the right to withdraw is a showing of manifest injustice. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Commonwealth v. Woods, 452 Pa. 546, 307 A.2d 880 (1973); Commonwealth v. Ammon, 275 Pa. Super. 324, 418 A.2d 744 (1980). See also ABA Project on Minimum Standards for Criminal Justice, Standards Page 13} Relating to Pleas of Guilty ยง 2.1 (Approved Draft 1968). We next look to appellant's motion to withdraw the guilty plea, which in this case was joined with a motion to appoint counsel and a motion to reconsider sentence. The reason given for withdrawal of the plea is that appellant "was mis-led by Counsel as to what the severity of the sentence would be" and that "in light of his age, intelligence, and standing he believes that the Guilty Plea was not knowingly and intelligently entered . . . ." The trial court refused to grant a hearing upon appellants motions but did appoint new counsel to represent appellant on appeal. Under these circumstances, did the court err in not providing appellant with a hearing on his petition to withdraw his guilty plea? We think not. On October 8, 1981, Cappelli entered his guilty plea after an extensive colloquy.*fn1 The guilty plea was a negotiated one which was memorialized in a detailed agreement which had been signed by appellant, his attorney and the district attorney. The agreement was placed in the record and there were painstaking efforts to assure that Cappelli understood the nature of the plea agreement.

At the outset, the court and the district attorney established the background giving rise to the plea:

MR. WIEDEMER: [Assistant District Attorney]

Good morning, Your Honor. May it please the Court, inviting the Court's attention to Commonwealth versus Gerald Cappelli, 3325 of '81 and 3516 of '81. Let the record reflect the defendant is in court represented by Randolph Von Till, Esquire. Your Honor, this is a negotiated plea. There is a detailed agreement or plea agreement in this matter. I ask leave to hand up the original copy of this agreement signed by the Commonwealth's attorney, the defendant, and Mr. Von Till.

THE COURT: I think that you'll have to express the agreement on the record as far as handing it up, so I can be sure he understands what's going on, et cetera.

[ 340 Pa. Super. Page 14]

Jerry, how old are you?


THE COURT: And Mr. Von Till is your lawyer?


THE COURT: Now, have you been having meetings and conferences with Mr. Von Till?


THE COURT: And are you satisfied that he understands the facts of all of the cases against you?


THE COURT: Are you satisfied that he's represented you to the best of his ability and for your best interests?


THE COURT: Do you have any complaints or criticisms about his representations of you?


THE COURT: Are you satisfied with his representation of you?


THE COURT: All right.

MR. WIEDEMER: Very well. May I go forward, Your Honor?


MR. WIEDEMER: And now this first day of October, 1981, I, Gerald Cappelli, enter into the following agreement with the Commonwealth of Pennsylvania represented by A. Roy DeCaro, Deputy District Attorney and Kirk V. Wiedemer, Assistant District Attorney. I am entering this agreement with the advise [sic] and assistance of Counsel. My Counsel is Randolph Von Till, Esquire. I have reviewed this agreement with my Counsel and have discussed all of its terms with him. All the terms and conditions of this agreement have been explained to me

[ 340 Pa. Super. Page 15]

    and I fully understand them. I am entering into this agreement of my own free will. I am entering into this agreement voluntarily. I have not been forced or coerced to enter into this agreement. I am entering into this agreement because I am guilty of the crimes to which I will hereafter agree to plead guilty and because I believe that entering into this agreement is in my best interest.

Thereafter, the multiple charges to which Cappelli was pleading guilty were described and the agreement was further read into the record:

I, Gerald Cappelli, am agreeing to plead guilty to all of the offenses listed above because I am guilty of all and each of them.

I, Gerald Cappelli, agree to fully cooperate with the Commonwealth of Pennsylvania in the prosecution of any and all of the following persons: Richard Yacoubian, Tyrone Fox, Paul Cummings.

Thereafter, appellant's specific obligations under the agreement were stated, and we quote, in part:

I, Gerald Cappelli, understand that in exchange for the above and foregoing, the Commonwealth of Pennsylvania, by Messrs. DeCaro and Wiedemer agree to make the following recommendations:

1. At time of my sentencing, the Commonwealth will recommend that the sentences on the crimes to which I am entering pleas of guilty as stated above will all be concurrent to and with one another.

2. That my minimum term of incarceration will not exceed ten years and that my maximum term of incarceration will not exceed twenty years.

3. That the actual terms of my sentence will be up to the sentencing Judge, in the Judge's discretion, not to exceed the terms set forth immediately above. I understand that this means that I could go to jail for a minimum of ten years to a maximum of twenty years or for any period of time less than those periods.

[ 340 Pa. Super. Page 16]

. . . .

I, Gerald Cappelli, understand that if I violate any of the terms of this agreement that the agreement becomes null and void and that the Commonwealth will not be bound by its terms, and that should I violate the agreement after I tender my guilty pleas and after they are accepted by the Court of Common Pleas of Delaware County and the Commonwealth of Pennsylvania will be free to make whatever sentencing recommendations it deems appropriate up to and ...

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