Appeal from the Order in the Court of Common Pleas of Delaware County, Criminal Division, No. 7502/7503 of 1985 1679 of 1986.
Ann Aschauer Osborne, Assistant District Attorney, Radnor, for Com., appellant.
Lisa M. Dinicola, Assistant Public Defender, Springfield, for appellee.
Cirillo, President Judge, and McEwen and Tamilia, JJ.
[ 365 Pa. Super. Page 564]
The Commonwealth appeals from the denial of its motion to vacate appellee's sentence as modified following a hearing on appellee's motion to reconsider.
Appellee was charged with several theft offenses under three separate criminal informations; each was accompanied by a charge of conspiracy. On July 8, 1986, he entered voluntary guilty pleas to the crimes of criminal attempt-burglary, two charges of retail theft and two charges of criminal conspiracy. As part of the plea negotiations, the Commonwealth recommended a sentence of incarceration of not less than two and one-half years, less one day, to not more than five years, less one day, for each of the offenses with sentences to run concurrently. The trial judge imposed this recommended sentence on July 8, 1986.
On July 15, 1986, the appellee filed a motion to reconsider the sentence stating that he was sole support of his wife and daughter, had a job at Quality Market, was assisting the prison chaplain and was working in prison toward a G.E.D. Although appellee argued that his sentence was too harsh, the Commonwealth opposed any reduction of the sentence. Following a hearing on the matter on July 18, 1986, the court entered an Order on July 21, 1986 reducing appellee's sentence to a term of not less than two years nor more than five years, less one day. Subsequently, the Commonwealth filed a motion to vacate the Order and to reinstate the sentence pursuant to the negotiated plea. The
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trial court denied that motion on August 1, 1986, after hearing argument, and the appellee's sentence remained as modified. The Commonwealth filed this timely appeal.
The sole issue before us is whether the lower court was prevented from modifying the appellee's sentence since that sentence was a recommendation which was given the court by the district attorney and had resulted from plea bargaining negotiations.
As the trial judge correctly notes in his Opinion, "Pennsylvania has long recognized plea discussions or plea bargaining or plea negotiations as a just method of disposition in criminal cases." (Slip Op., McGovern, J., 2/12/87, p. 5.) See also Commonwealth v. Wilkins, 442 Pa. 524, 277 A.2d 341 (1971); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966). The Rules of Criminal Procedure, moreover, provide for plea agreements to be handled as follows:
Rule 319. Pleas and 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.
In Commonwealth v. Sutherland, 234 Pa. Super. 520, 340 A.2d 582 (1975), we acknowledged, "a sentence
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recommendation is among the 'terms' of a plea bargain,*fn1 and the Rule provides that if the judge cannot concur in the bargain, he must afford the defendant an opportunity to withdraw." ...