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COMMONWEALTH PENNSYLVANIA v. PEDRO TERREFORTE (02/27/89)

submitted: February 27, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
PEDRO TERREFORTE, APPELLANT (TWO CASES)



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division at No. 2428-38 May 1983. Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division at No. 2428-38 May 1983.

COUNSEL

Irene H. Cotton, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.

Popovich, Johnson and Watkins, JJ. Johnson, J., files a dissenting opinion.

Author: Popovich

[ 387 Pa. Super. Page 455]

This consolidated appeal stems from appellant's Post Conviction Hearing Act*fn1 petition to withdraw his guilty plea.

[ 387 Pa. Super. Page 456]

On December 12, 1983, Pedro Terreforte entered a plea of guilty to rape, 18 Pa.C.S.A. § 3121, involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123, and possession of an instrument of crime, 18 Pa.C.S.A. § 907(a).*fn2 However, appellant, at his guilty plea colloquy, expressly reserved the right to raise on appeal a speedy trial issue, Pa.R.Crim.P. Rule 1100. When ruling upon appellant's PCHA petition, the lower court denied his petition to withdraw his plea. However, the court granted appellant the right to appeal the Rule 1100 issue nunc pro tunc. Consequently, we have before us a consolidated appeal: 1) from the denial of the PCHA petition to withdraw a guilty plea, at 2774 Phil.1988; and 2) from the judgment of sentence alleging a Rule 1100 violation, at 2775 Phil.1988. For the following reasons, we grant appellant's petition to withdraw his guilty plea and remand for a new trial. Consequently, we quash appellant's appeal nunc pro tunc of the Rule 1100 issue.

After engaging in a lengthy colloquy during which appellant was informed of the consequences of his guilty plea, the trial court informed him that his right to raise the Rule 1100 issue on appeal would be preserved. See Guilty Plea Colloquy, pp. 17, 34-35. The trial court then accepted his plea, deferred sentencing pending a psychiatric evaluation and informed appellant of his right to petition for withdrawal of his plea prior to sentencing. Guilty Plea Colloquy, p. 36.

Post-plea motions alleging trial court error in granting the Commonwealth's Rule 1100 extensions were filed. On September 25, 1984, after denying the motion, the trial court sentenced appellant to a term of incarceration totaling twelve and one-half to twenty-five years. On October 5, 1984, appellant filed a post-sentencing motion to withdraw his guilty plea, but said motion was denied. On October 11, 1984, appellant filed a petition for reconsideration

[ 387 Pa. Super. Page 457]

    and/or modification of sentence. However, this petition was also denied. Appellant did not appeal.

On April 29, 1986, appellant filed a pro se petition under the Post Conviction Hearing Act. Almost one year later, on April 28, 1987, new counsel was appointed, and appellant filed an amended PCHA petition requesting: 1) a complete discharge due to a Rule 1100 violation; 2) resentencing; 3) the right to appeal nunc pro tunc since counsel was ineffective by failing to file a direct appeal; and 4) permission to withdraw his plea since it was unlawfully induced by the ineffectiveness of counsel aided by court error. Following an evidentiary hearing, the PCHA court determined that appellant entered his plea knowingly and voluntarily. However, the PCHA court found that appellant's plea was entered with the reservation that his right to direct appeal of the Rule 1100 issue would be preserved. Thus, the PCHA court denied appellant permission to withdraw his guilty plea and granted permission to appeal the Rule 1100 issue nunc pro tunc. This consolidated appeal followed.

On appeal, appellant contends that he should be permitted to withdraw his guilty plea since it was not entered knowingly and voluntarily. Specifically, appellant argues that when he entered his plea, he was misinformed by the court that the Rule 1100 issue would survive his plea and establish grounds for appeal. Therefore, he could not have entered a voluntary plea since he relied on the erroneous statements of the trial court. Additionally, appellant argues counsel was ineffective since counsel incorrectly advised him that conditional pleas are accepted in Pennsylvania, and appellant entered his plea in reliance on that advice. Upon review, we agree with appellant, grant his petition to withdraw his guilty plea and remand for a trial.

When reviewing a request to withdraw a guilty plea after sentence has been entered, we must determine whether there has been a showing of prejudice which results in a manifest injustice to the defendant. Commonwealth v. Vance, 376 Pa. Super. 493, 498, 546 A.2d 632, 635 (1988); Commonwealth v. Middleton, 504 Pa. 352, 473 A.2d

[ 387 Pa. Super. Page 4581358]

(1984); Commonwealth v. West, 336 Pa. Super. 180, 485 A.2d 490 (1984). If a defendant seeks to withdraw his plea after sentencing, then he must carry the substantial burden of demonstrating manifest injustice in order to prevent the use of plea withdrawal merely as a sentence testing device. Vance, 546 A.2d at 635; Commonwealth v. Shaffer, 498 Pa. 342, 345, 446 A.2d 591, 593 (1982). Under the manifest injustice standard, the petitioner must show that his plea was involuntary or was entered without knowledge of the charge. Commonwealth v. Glaze, 366 Pa. Super. 517, 520, 531 A.2d 796, 798 (1987); Shaffer, supra.

Rule 319 of the Pennsylvania Rules of Criminal Procedure requires that a court conduct an on-the-record colloquy to determine whether the guilty pleas is entered in a knowing and voluntary manner. The test of an adequate colloquy comprises of six ...


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