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COMMONWEALTH PENNSYLVANIA v. BRYANT JONES (09/18/89)

submitted: September 18, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
BRYANT JONES, APPELLANT



Appeal from a Modified Judgment of Sentence Docketed June 30, 1986 in the Court of Common Pleas of Philadelphia County Criminal Division, No. 83-09-359-80.

COUNSEL

Owen R. Silverstein, Philadelphia, for appellant.

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

Rowley, Kelly and Cercone, JJ.

Author: Cercone

[ 389 Pa. Super. Page 161]

This is an appeal from a modified judgment of sentence. On August 6, 1985, appellant Bryant Jones entered an open guilty plea to two counts of rape, two counts of criminal conspiracy and one count of possession of an instrument of crime. Appellant was sentenced to serve two consecutive terms of imprisonment of four (4) to eight (8) years on each rape count and concurrent sentences on the remaining counts. Subsequently, appellant's petition for modification of sentence was granted, reducing two of the sentences to three (3) to six (6) years. Both before and after sentencing, however, appellant sought to withdraw this plea. After appellant's initial appeal to this Court was denied,*fn1 the

[ 389 Pa. Super. Page 162]

Honorable James D. McCrudden of the Philadelphia Court of Common Pleas reinstated his right to appeal nunc pro tunc.*fn2 This timely appeal follows.

Appellant proffers two arguments for our consideration. First, appellant contends that the lower court abused its discretion in denying his petition to withdraw his guilty plea before sentencing and in its subsequent refusal to grant his post-sentence motion to withdraw this plea on the grounds that it was made involuntarily. Second, appellant argues that trial counsel rendered ineffective assistance by advising him to plead guilty rather than stand trial. We disagree with these contentions for the reasons outlined below.

Appellant correctly notes that requests to withdraw guilty pleas prior to sentencing should be liberally allowed by our trial courts. Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973). The withdrawal of a guilty plea prior to sentencing should be freely permitted for any fair and just reason unless such an allowance substantially prejudices the prosecution. Id. Absent an abuse of discretion, we will not disturb the decision of a lower court. In contrast, a trial court is only required to permit a withdrawal of a guilty plea after sentencing where a defendant/appellant can demonstrate that prejudice on the order of manifest injustice has occurred. Commonwealth v. Cappelli, 340 Pa. Super. 9, 489 A.2d 813 (1985). Manifest injustice occurs where a plea is entered involuntarily or without knowledge of the charge. Commonwealth v. Muller, 334 Pa. Super. 228, 482 A.2d 1307 (1984). As with withdrawals before sentencing, we will not disturb a lower court's decision in this instance absent an abuse of discretion. In the case sub judice, the lower court found that the Commonwealth

[ 389 Pa. Super. Page 163]

    would be substantially prejudiced if the motion to withdraw the guilty plea was granted. Reviewing the record, we agree with the lower court.

On August 6, 1985, appellant entered the relevant open guilty plea. A lengthy colloquy was conducted by the lower court judge and the Commonwealth to inform appellant of his rights in conjunction with the plea and to determine whether the pertinent pleas were knowingly and voluntarily proffered.*fn3 Subsequently, the lower court received a letter from one Frederick Jenkins which stated that he [Jenkins] had advised appellant to plead guilty. (The record does not disclose whether Jenkins is a lawyer or layman.) On December 19, 1985, the court conducted a second hearing in conjunction with the letter. Appellant was again advised that he could withdraw his plea and ...


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