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submitted: January 31, 1989.


Appeal from the Order entered July 25, 1988 in the Court of Common Pleas of Wayne County, Criminal Division, No. 149 of 1986.


Michael C. Cowley, Scranton, for appellant.

Gregory B. Abeln, Deputy Atty. Gen., Harrisburg, for Com., appellee.

Kelly, Johnson and Melinson, JJ. Johnson, J., concurs in the result.

Author: Kelly

[ 389 Pa. Super. Page 555]

Appellant, Walter Porreca, appeals from an order denying allowance to withdraw a guilty plea following imposition of a sentence which exceeded the non-binding sentencing recommendation made by the Commonwealth in accordance with the terms of a court approved plea agreement, as well as the sentence which appellant had previously been led to believe would be imposed under a written agreement with a deputy attorney general which had not been submitted for judicial approval under Pa.R.Crim.P. 319. We affirm.

The relevant facts and procedural history may be summarized as follows. Between 1980 and 1982, appellant was a managing participant in a large scale stolen car ring. In December 1984, though he had been out of the operation for approximately a year and a half, appellant became aware that the police were investigating his previous involvement in the operation. Appellant approached the police and voluntarily gave a statement which implicated himself in 112 crimes relating to the stolen car ring.

Subsequently, in 1985, appellant entered into a written plea agreement with the Commonwealth which required his cooperation with a police investigation of the operation in return for a promise to reduce the charges which would be brought against him from 112 various criminal counts to one count each of corrupt organization and theft by unlawful taking, and the further promise of a prosecutorial recommendation of a sentence of no more than "county time," i.e., a five year maximum sentence. See 42 Pa.C.S.A. § 9762. This written plea agreement, signed by the parties, was not taken before a common pleas court judge for the

[ 389 Pa. Super. Page 556]

    required judicial approval at that time. See Pa.R.Crim.P. 319.

For three years, appellant provided the police with complete and ungrudging cooperation. This cooperation involved repeated service as a "wired" informant, and as such he was required to be on call for service around the clock as needed. It was the opinion of the investigating officer who coordinated appellant's activities that appellant had acted above and beyond the call of duty imposed by his agreement, and had in fact knowingly put his life in jeopardy. The officer also indicated that appellant's cooperation was the critical factor in securing 45 to 50 of the 81 convictions which resulted from the investigation.

After appellant's cooperation had been substantially completed, he was brought before the common pleas court for entry of his guilty plea in accordance with the 1985 plea agreement. The judge assigned, however, indicated his absolute unwillingness to accept any plea agreement in this case which provided for a specific sentence to be imposed by the trial court at sentencing. No plea was accepted at that time.

Subsequently, a second, less favorable, plea agreement was submitted for approval of the trial court, which specifically characterized the prosecution's sentencing recommendation as not binding on the sentencing judge. The agreement provided in pertinent part:

12. The defendant understands that the court is not a party to and is not bound by this agreement nor by any recommendations made by the parties. Thus, the court is free to impose upon the defendant any sentence up to and including the maximum sentence of fine and imprisonment together with the cost of prosecution.

13. If the court imposes a sentence with which the defendant is dissatisfied, the defendant will not be permitted to withdraw any guilty plea for that reason alone, yet if the Court refuses to concur with any other aspects of this Agreement, he will be

[ 389 Pa. Super. Page 557]

    allowed to withdraw his guilty plea pursuant to the Pennsylvania Rules of Criminal Procedure.

(Plea Agreement 9/11/86). (Emphasis added). The plea, thus expressly and unequivocally conditioned, was accepted by the judge originally assigned.

That judge later recused himself as the result of his contemporaneous recusal from an unrelated case in which appellant was also involved. This case was assigned then to a second judge for sentencing.

At sentencing, in accordance with the plea agreement, the Commonwealth provided extended argument (described aptly by the sentencing court as eloquent) in favor of the imposition of a maximum sentence of no more than county time. Counsel for appellant echoed and expanded upon the Commonwealth's arguments in favor of leniency, and suggested that a sentence of probation be imposed.

Nonetheless, the trial court imposed an aggregate term of two to six years imprisonment. As all sentences with more than a five year maximum must be served in a state rather than a county facility, 42 Pa.C.S.A. § 9762, the sentence imposed was not within the bounds of the 1985 unapproved plea agreement, or the non-binding prosecutorial recommendation made in accordance with the terms of the plea agreement actually accepted and approved by the trial court.

Appellant petitioned to withdraw his plea based upon the sentencing judge's non-concurrence in the Commonwealth's sentencing recommendation and the failure to sentence consistently with the 1985 unapproved plea agreement. Appellant also contended that the plea colloquy was ...

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