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COMMONWEALTH PENNSYLVANIA v. EDWARD SPENCER (08/02/85)

filed: August 2, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD SPENCER, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. EDWARD SPENCER, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Nos. 1344-45, 1356-57 March 1981, 1472, 1478 April 1981. NO. 00211 PHILA. 1984, Appeal from the Order in the Court of Common Pleas of Philadelphia County, Criminal Nos. 1344-45, 1356-57 March 1981, 1472, 1478 April 1981

COUNSEL

Leonard Tishgart, Philadelphia, for appellant.

Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Johnson and Shoyer,*fn* JJ. Shoyer, J., files a concurring opinion.

Author: Spaeth

[ 344 Pa. Super. Page 382]

This case arises on two appeals. The first appeal, No. 3348 Philadelphia 1983, is an appeal from judgment of sentence imposed after appellant pleaded guilty to charges of robbery, burglary, conspiracy, and possession of an instrument of crime. Appellant argues that in imposing sentence of 35 to 70 years in prison, the sentencing judge abused his discretion. We agree, and vacate the judgment of sentence and remand for resentencing before a different judge. The second appeal, No. 211 Philadelphia 1984, is an appeal from the trial court's order denying appellant's motion to withdraw his guilty plea. We must quash this appeal.

[ 344 Pa. Super. Page 383]

[ sic ] the fact that it was agreed that the Commonwealth would not make any specific recommendation as to any possible sentence." Id., at 18. To this, the assistant district attorney replied: "Your Honor, I have reviewed the notes of testimony in court this morning, and at no place in the notes of testimony that I can find does it indicate that the Commonwealth will not make a recommendation." Id. In fact, a review of the notes of testimony of the guilty plea proceeding discloses that when appellant entered his plea, the assistant district attorney then representing the Commonwealth -- a different assistant district attorney from the one who appeared at sentencing -- had asked appellant, "Do you understand there will be no specific recommendations as to any sentence in this case by the Commonwealth; do you understand that?", to which had appellant replied, "Yes." N.T. 12/3/81, at 24. The sentencing judge stated: "I don't remember whether Mr. McGovern [the assistant district attorney who had appeared at the guilty plea proceeding] said he was going to recommend any specific sentence. I don't believe he did. And I think defense counsel may be right that the recommendation would be that the sentence would be left up to me." N.T. 11/17/83, at 19-20. The judge added: "In any event, counsel for both the Commonwealth and most defense counsel in this City know I don't pay any attention to the Commonwealth's recommendation at any time for any reason. It is my job to do the sentencing, not [District Attorney Edward G.] Rendell's." Id., at 20. The judge then imposed sentence totaling 35 to 70 years in prison, to be served consecutive to a sentence of 10 to 20 years that appellant was serving for homicide. Id., at 28-32. In his opinion in response to appellant's appeal, the judge noted appellant's argument that in recommending a sentence, the assistant district attorney had violated the plea agreement. Slip op. of tr. ct. at 6. Rejecting this argument, the judge stated that "[t]he sentence imposed was that determined solely by this Court." Id. at 7.

[ 344 Pa. Super. Page 385]

The Commonwealth acknowledges that Williams is similar to this case. It argues, however, that Williams was wrongly decided; in its view, the remedy ordered in Williams -- permitting the guilty plea to be withdrawn -- was not appropriate. It argues, therefore, that we certify this case for argument before the court en banc so that Williams may be reconsidered.

We have concluded that we may not consider either appellant's argument that Williams is controlling, or the Commonwealth's argument that Williams was wrongly decided. The reason for this conclusion, as will appear, is that in Williams the issue of the effect of the assistant district attorney's conduct was preserved for appellate review, while here it has not been preserved.

As our citations to the notes of testimony have indicated, the guilty plea proceeding was conducted on December 3, 1981, and the sentencing proceeding, on November 17, 1983. On November 25, 1983, appellant filed a timely motion to modify sentence, Pa.R.Crim.P. 1410 (motion to modify sentence shall be filed with sentencing court within 10 days of sentence), which the trial court denied on November 28, 1983. On November 30, 1983, appellant filed a supplemental motion to modify sentence. In response, the trial court signed a rule to show cause why appellant's sentence should not be vacated, and made the rule returnable on January 4, 1984. Attached to the rule to show cause was an order vacating the judgment of sentence; however, the order was not signed by the trial court.

On December 14, 1983, appellant filed an appeal from the judgment of sentence. This was Appeal No. 3384 Philadelphia 1983.

On January 4, 1984,*fn1 the return date of the rule issued on November 30, 1983, the trial court heard appellant's motion to modify sentence. At the start of the hearing, appellant's counsel handed to the court "a motion to withdraw the guilty plea nunc pro tunc." N.T. 1/4/84, at 2. The motion

[ 344 Pa. Super. Page 386]

    was apparently not filed with the clerk, and it is not contained in the record transmitted to us. The court accepted the motion, however, and directed appellant to "[p]roceed." Id. In the course, and at the conclusion, of the hearing, the court denied both the motion to withdraw the guilty plea, id., at 13, and the motion to modify the sentence, id., at 33. The court then "reimposed" the sentence that had been imposed on November 17, 1983. Id. When the assistant district attorney inquired whether sentence had ever been vacated, the court answered: "I think it was. I know there was the Rule to Show Cause and there was an Order to Vacate. I think I signed the original." Id.

On January 18, 1984, appellant appealed from the trial court's order denying his motion to withdraw his guilty plea. This was the appeal we are now considering -- Appeal No. 211 Philadelphia 1984.

If appellant wished to challenge the validity of his guilty plea, he was obliged to file a motion to withdraw the plea within ten days of the sentence. Pa.R.Crim.P. 321. Appellant filed no such motion. Accordingly, he has failed to preserve the argument he now makes to us, i.e., that he should have been permitted to withdraw the plea because the assistant district attorney violated the plea agreement. Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975). See also Commonwealth v. Smith, 322 Pa. Super. 504, 469 A.2d 1104 (1983) (failure to file motion within 10 days of sentence constituted waiver of defendant's right to challenge any defects in the guilty plea colloquy); Commonwealth v. Green, 312 Pa. Super. 265, 458 A.2d 951 (1983) (failure to timely file petition to withdraw guilty plea resulted in waiver of right to challenge validity of plea on direct appeal).

We have not overlooked the fact that on January 4, 1984, at the hearing on appellant's motion to modify sentence, the trial court permitted appellant to file a motion to withdraw the guilty plea nunc pro tunc. We pass by the issue whether we may recognize the motion as in fact filed,

[ 344 Pa. Super. Page 387]

    given that it was only handed to the court and not filed with the clerk. Commonwealth v. Nixon, 311 Pa. Super. 450, 457 A.2d 972 (1983) (leaving motions in judge's chambers or even handing a copy to the judge in the courtroom does not constitute filing; document must be filed in office of clerk of courts). Assuming that the motion was filed, still, it had no force. When, on December 14, 1983, appellant appealed the judgment of sentence of November 17, 1983, the trial court lost its jurisdiction to proceed further regarding the judgment, Pa.R.A.P. 1701(a), except that the court could on timely motion for reconsideration vacate the sentence within thirty days of its imposition, Pa.R.A.P. 1701(b)(3). The court, however, did not vacate the judgment of sentence; although an order to vacate was attached to the rule to show cause, which was issued on November 30, 1983, the court never signed the order. The court therefore lost its jurisdiction, with the result that its acceptance, on January 4, 1984, of appellant's motion to withdraw his guilty plea nunc pro tunc, and its subsequent denial of the motion, were both nullities. Cf. Commonwealth v. Gordon, 329 Pa. Super. 42, 477 A.2d 1342 (1984) (trial court lost jurisdiction to modify sentence where appeal taken and sentence not vacated within 30 days); Commonwealth v. Green, supra (trial court properly ruled it was without jurisdiction to consider motion to withdraw guilty plea filed three months after sentence and two months after appeal taken). Appellant's appeal from the order denying his motion was therefore equally a nullity, and accordingly, the appeal must be quashed.

-2-

On Appeal No. 3348 Philadelphia 1983, appellant argues that in imposing consecutive sentences totaling 35 to 70 years in prison, the sentencing judge abused his discretion. This issue has been preserved for our review. As we have already noted, the sentence was imposed on November 17, 1983; the motion for reconsideration was timely filed, on November 25; the motion was denied on

[ 344 Pa. Super. Page 388]

November 28; and this appeal from the judgment of sentence was timely filed, on December 17, 1983. These events were in no way affected by the action of the trial court in subsequently "reimposing" the judgment of sentence, on January 4, 1984, for as we have discussed, by then the court had lost its jurisdiction to proceed further regarding the judgment.

-a-

The charges to which appellant pleaded guilty arose from two incidents. The evidence regarding these incidents, as summarized by the assistant district attorney at the guilty ...


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