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COMMONWEALTH PENNSYLVANIA v. MICHAEL COLE (08/30/89)

filed: August 30, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL COLE, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 939-942-1/2.

COUNSEL

Noah Gorson, Merion Station, for appellant.

Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com.

Cirillo, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Beck, Kelly, Popovich and Melinson, JJ. McEwen and Kelly, JJ., file concurring opinions.

Author: Wieand

[ 387 Pa. Super. Page 329]

Michael Cole entered a negotiated plea of guilty to charges of robbery and criminal conspiracy. Before he had been sentenced, however, Cole filed a motion to withdraw his guilty plea, alleging that it had not been entered voluntarily and that he was innocent of the charges. Following an evidentiary hearing, the trial court denied the motion to withdraw the plea and sentenced Cole to serve two concurrent terms of imprisonment, each for not less than three and one-half (3 1/2) years nor more than ten (10) years. Cole then filed a motion, pursuant to Pa.R.Crim.P. 321,*fn1 challenging

[ 387 Pa. Super. Page 330]

    the trial court's denial of his motion to withdraw the guilty plea. When this motion was denied, Cole filed a direct appeal from the judgment of sentence. He argues that the trial court abused its discretion when it denied the motion to withdraw his plea of guilty.

Appellant, along with his co-defendant, Earl Robinson, had been arrested on June 27, 1985 and charged with robbery, aggravated and simple assault, theft, receiving stolen property and criminal conspiracy in connection with the robbery and beating of two elderly women in a restroom at the Greyhound Bus terminal in Philadelphia. Trial on these charges was originally scheduled for December 4, 1985, but because of continuances, trial did not commence until July 14, 1986, when the trial court heard pre-trial motions which had been filed by appellant and co-defendant Robinson. After defendant's motion to dismiss pursuant to Pa.R.Crim.P. 1100 had been denied, the Commonwealth proceeded to present evidence in response to a motion by defendant to suppress evidence. After receiving testimony from two Commonwealth witnesses, the court continued the hearing until the following morning to allow Ms. Essie Dooley, one of the robbery victims and an essential Commonwealth witness,*fn2 to travel from Georgia, where she was caring for a sick father, to testify as a Commonwealth witness.*fn3

[ 387 Pa. Super. Page 331]

On the morning of July 15, 1986, after Dooley's presence had become known to appellant but before she had testified, the co-defendant, Earl Robinson, entered a plea of guilty. Appellant then also sought to plead guilty and, through counsel, negotiated an agreement with the Commonwealth whereby he would plead guilty to charges of robbery and criminal conspiracy, in exchange for which the Commonwealth would nol pros the remaining charges against him and refrain from making any recommendation at sentencing. Following an extensive colloquy, the trial court accepted appellant's plea and scheduled sentencing for September 17, 1986. The Commonwealth thereupon dismissed its witnesses, and Dooley returned to Georgia. On August 26, 1986, more than a month after pleading guilty, appellant filed a motion to withdraw his guilty plea.*fn4 This motion, as we have observed, was denied after hearing.

Appellant argues that his assertion of innocence in the motion to withdraw his guilty plea provided the trial court with a fair and just reason to allow the withdrawal of the plea and that the court's denial of that motion, therefore, was an abuse of discretion. We disagree with appellant's reasoning and, for the reasons which follow, affirm the judgment of sentence.

The applicable law was set forth by the Supreme Court in Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973) as follows:

Although there is no absolute right to withdraw a guilty plea, properly received by the trial court, it is clear that a request made before sentencing . . . should be liberally allowed. See United States ex rel. Culbreath v. Rundle, 466 F.2d 730 (3d Cir.1972); United States v. Young, 424 F.2d 1276 (3d Cir.1970); United States v. Stayton, 408 F.2d 559 (3d Cir.1969); Pa.R.Crim.P. 320; ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty ยง 2.1 (Approved Draft, 1968); Note, Pre-Sentence Withdrawal of Guilty

[ 387 Pa. Super. Page 332]

Pleas in Federal Courts, 40 N.Y.U.L.Rev. 759 (1965). In United States ex rel. Culbreath v. Rundle, supra, the Third Circuit stated:

"It has been recognized under Pennsylvania and Federal law that a trial judge has discretion to refuse a request to retract a plea of guilty since there is no absolute right to withdraw such a plea. However, a request made before sentencing ...


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