Appeal from the Order of the Court of Common Pleas, Erie County, Criminal Division, at No. 124 of 1985.
Jeffrey J. Jewell, Erie, for appellant.
Douglas Wright, Assistant District Attorney, Erie, for Com., appellee.
Brosky, Del Sole and Montgomery, JJ. Del Sole, J., files a concurring and dissenting opinion.
[ 358 Pa. Super. Page 495]
This is an appeal from the judgment of sentence imposed after a plea of guilty and subsequent to the denial of appellant's Motions for leave to withdraw his guilty plea and for modification and reconsideration of sentence.
Appellant presents the following issue for our review: whether the trial court erred in denying appellant's motion for leave to withdraw his guilty plea because it was not made knowingly or voluntarily. Because we conclude that appellant's claim has merit, we reverse.
Appellant was charged with one count of involuntary deviate sexual intercourse on a person less than sixteen years of age and one count of corruption of minors. On May 14, 1985, he entered pleas of guilty to both charges.
[ 358 Pa. Super. Page 496]
Appellant was then sentenced on July 29, 1985, to pay the cost of prosecution and to a minimum period of five years' and a maximum period of ten years' incarceration on the charge of involuntary deviate sexual intercourse under the mandatory sentencing provision of 42 Pa.C.S.A. § 9718(a).*fn1 On the corruption of minors charge, appellant was ordered to pay the cost of prosecution and to undergo a period of probation consecutive to the sentence imposed on the involuntary deviate sexual intercourse count.
Subsequently, appellant filed timely motions for leave to withdraw the guilty plea and for modification and reconsideration of sentence. The trial court then vacated the judgment of sentence pending review of appellant's motions. On November 13, 1985, the trial court denied both motions. Following this denial of relief, appellant was then resentenced on November 26, 1985, to the same terms and conditions which were imposed upon him at the original sentencing of July 29, 1985.*fn2
The thrust of appellant's argument is whether 42 Pa.C.S.A. § 9718 requires notice to appellant, prior to sentencing, of its applicability, and, whether, as a result of failing to receive such notice, appellant's plea was involuntary and not knowingly tendered. We conclude that § 9718 requires that such notice be given prior to sentencing. Consequently, we hold that the trial court erred in not allowing appellant to withdraw his plea on that basis.
It is a well-settled rule in this Commonwealth that withdrawal of a guilty plea after sentencing will only be permitted upon a showing of prejudice on the order of
[ 358 Pa. Super. Page 497]
manifest injustice. Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Best, 332 Pa. Super. 177, 480 A.2d 1245 (1984). This more substantial burden is justified because of the recognition that post-sentencing plea withdrawal may be used as a sentence-testing device. Commonwealth v. Shaffer, supra, Commonwealth v. Broadwater, 330 Pa. Super. 234, 479 A.2d 526 (1984).
The Shaffer Court delineated standards for determining when a plea rises to the level of manifest injustice: When it is entered into involuntarily, without understanding the nature of the charges, without knowledge of the factual basis of the charges, because of threats or coercion, because the prosecutor did not recommend a plea-bargained sentence or because the bargained-for sentence was not imposed or because an accused proclaims his innocence.
When a defendant enters a plea knowingly and voluntarily, it is assumed that he has weighed the alternatives of going to trial versus entering a plea. This includes consideration of the evidence which he knows or has reason to believe the prosecution has available and whether, based upon his assessment of that evidence relative to the elements of the crime(s) charged, the Commonwealth is able to meet its burden of proof at trial. Commonwealth v. Shaffer, supra.
In this Commonwealth, the test of the "totality of the circumstances" has been adopted as a measuring stick to determine whether a defendant has made a showing of manifest injustice to allow post-sentence withdrawal. This test looks beyond the technical rote recitations made to a defendant at the plea colloquy to a critical evaluation of the evidence presented against him which substantiates the elements of the crime(s) charged, as well as his own testimony concerning the criminal episode. ...