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COMMONWEALTH PENNSYLVANIA v. KIRK OTTO BENNETT (11/17/86)

decided: November 17, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
KIRK OTTO BENNETT, APPELLEE



Appeal from the Order of the Superior Court, September 7, 1984, reversing the Order of the Court of v. Common Pleas, Criminal Division, Dauphin County, No. 443 C.D. 1980. 482 A.2d 666, Pa. Super. 1984

COUNSEL

Katherene E. Holtzinger-Conner, Asst. Dist. Atty., William A. Behe, Harrisburg, for appellant.

Judith A. Calkin, Harrisburg, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., concurred in the result. Nix, C.j., filed a dissenting opinion.

Author: Larsen

[ 512 Pa. Page 526]

OPINION OF THE COURT

In this appeal, within the context of a claim of ineffective assistance of counsel, we address whether the text of Pa.R.Crim.P. Rule 319(b)(3) must be read or communicated to a criminal defendant at or before the time of sentencing, when the sentencing court has rejected the terms of a plea agreement. Rule 319(b)(3) reads as follows:

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.

During the waning hours of January 11, 1980, Kirk Otto Bennett, appellee, and Jeffrey Nead Ross, a co-defendant,

[ 512 Pa. Page 527]

    attempted to rob an assistant manager of an Elby's Restaurant in Lower Paxton Township, Dauphin County. The victim had just completed his afternoon shift, and, bearing cash receipts of nearly $3,000 for a customary deposit at a local bank, he left the restaurant and approached his van. Appellee, by his own admission, shot the victim once in the back with a .22 caliber rifle and the victim died within an hour.

On June 23, 1980, appellee pleaded guilty to a general charge of murder, robbery and conspiracy pursuant to the terms of a plea agreement. His plea came after an exhaustive colloquy which demonstrated appellee's understanding of all matters prescribed by Rule 319,*fn1 including (1) the nature of the charges to which appellee would be pleading guilty; (2) the factual basis for the pleas; (3) the rights appellee would be waiving by entering his pleas; (4) the presumption of innocence; (5) the range of sentences for the offenses charged; and (6) the judge's discretion in either accepting or rejecting the plea agreement.

[ 512 Pa. Page 528]

The terms of the plea agreement were fully delineated on the record for the benefit of the court and to ensure that appellee knowingly and voluntarily assented to those terms. The prosecutor explained that the Commonwealth promised to recommend, in spite of extant aggravating circumstances, a life sentence on the murder charge should the court assess guilt at murder of the first degree and sentences on the robbery and conspiracy charges to run concurrently with the life sentence, in exchange for appellee's cooperation in this case and others and for appellee's testimony against co-defendant Ross.*fn2 The court and the prosecutor stressed several times during the colloquy that the court was free to impose the maximum allowable ...


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