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05/02/97 COMMONWEALTH PENNSYLVANIA v. MARK ERIC

May 2, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
MARK ERIC YOUNG, APPELLEE



Appeal from the PCRA Order of the Court of Common Pleas of Berks County, Criminal Division at No. 1980/94. Before SPRECHER, J.

Appeal from the Post Conv Relief Act May 30, 1996 In the Court of Common Pleas of Berks County, Criminal, No. 1980/94. Before SPRECHER, J.

Before: McEWEN, P.j., Popovich and Montemuro*, JJ. Opinion BY Popovich, J. Montemuro, J. files a Concurring Statement. McEWEN, P.j. Concurs in the Result.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

FILED MAY 02 1997

The Commonwealth appeals from the order of the Court of Common Pleas of Berks County granting the post-conviction relief petition of appellee, Mark Eric Young, and permitting him to withdraw his guilty plea to indecent assault, 18 Pa.C.S. § 3126 (a) (4). For the reasons set forth below, we reverse the decision of the court below and reinstate appellee's judgment of sentence.

Herein, the Commonwealth argues that appellee is not entitled to post-conviction relief because he has waived his challenge to the validity of his plea. Further, the Commonwealth asserts that appellee has failed to demonstrate the "manifest inJustice" necessary to withdraw a guilty plea after sentencing. Finally, the Commonwealth submits that appellee's delay in filing his post-conviction attack on his plea has prejudiced the Commonwealth's ability to re-try him such that appellee's requested relief must be denied.

The record reveals the following: On April 10, 1994, appellee was arrested and charged with criminal attempt to commit rape, aggravated assault, terroristic threats, unlawful restraint, simple assault, and multiple counts of indecent assault and disorderly conduct. Counsel was appointed, and the matter proceeded to a preliminary hearing on July 27, 1994, where defense counsel and the Commonwealth reached a plea agreement.

According to the terms of the agreement, the Commonwealth would withdraw most of the felony offenses, and, in return, the charges of simple assault, indecent assault and disorderly conduct would be waived into court without appellee's objection. Further, the agreement provided that if appellee did not plead guilty to those charges, then the case would be remanded for a preliminary hearing on all of the original charges.

On September 13, 1994, appellee entered an open guilty plea to Count One, listed as simple assault, 18 Pa.C.S.A. § 2701 (a) (1), and Count Three, listed as indecent assault, 18 Pa.C.S.A. § 3126 (a) (4). Count Two, listed as indecent assault, 18 Pa.C.S.A. § 3126(a)(1), and Counts Four and Five, listed as disorderly conduct, 18 Pa.C.S.A. § 5503 (a) (1) and (a) (4) respectively, were dismissed. On the same date, the court sentenced appellee to concurrent terms of 156 days to 24 months. Appellee did not file post-sentence motions or a direct appeal.

On February 22, 1995, the victim died. *fn1 On September 18, 1995, one year after the entry of his guilty plea and sentence (and seven months after the death of his victim), appellee filed a pro se petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq., alleging, inter alia, ineffectiveness of counsel and unlawful inducement of a guilty plea. PCRA counsel was appointed, and a hearing was held on May 13, 1996. *fn2

By order dated May 30, 1996, the PCRA court granted appellee's petition for relief and permitted the withdrawal of his guilty plea to indecent assault. The court reasoned that the facts elicited during the plea colloquy did not match the crime to which appellant pleaded guilty, and, therefore, appellee entered an unknowing and involuntary plea. More specifically, the recitation of the facts which formed the basis of his indecent assault conviction appeared to indicate that appellant intended to plead guilty to Count Two of the indictment, i.e., indecent assault as defined by 18 Pa.C.S.A. § 3126 (a) (1), when, on the record, he actually pleaded guilty to Count Three, i.e., indecent assault as defined by 18 Pa.C.S.A. § 3126 (a) (4). Thus, the lower court reasoned appellee was unaware of the specific elements of the offense to which he pleaded guilty, thus, rendering his plea unknowingly, involuntarily and unintelligently entered. This Commonwealth appeal followed.

"When reviewing the grant or denial of a petition for post conviction relief, we are limited to determining whether the lower court's findings are supported by the record and its order is otherwise free of legal error." Commonwealth v. Laskaris, 407 Pa. Super. 440, 444, 595 A.2d 1229 (1991); Commonwealth v. Legg, 447 Pa. Super. 362, 669 A.2d 389 (1995). To be eligible for relief under the Post Conviction Relief Act, appellant must plead and prove by a preponderance of the evidence that his guilty plea was unlawfully induced where the circumstances of made it likely the the inducement caused the petitioner to plead guilty. 42 Pa.C.S.A. § 9543(a) (2) (iii); Commonwealth v. Yager, Pa. Super. , 685 A.2d 1000, 1003 (1996); Commonwealth v. Blackwell, 436 Pa. Super. 294, 647 A.2d 915, 920-921 (1994); Commonwealth v. Fluharty, 429 Pa. Super. 213, 632 A.2d 312, 313-314 (1993). Or, the petitioner must prove ineffective assistance of counsel which caused an involuntary or unknowing plea. 42 Pa.C.S.A. § 9743(a) (2) (iii); *fn3 Yager, 685 A.2d at 1004; Blackwell, 647 A.2d at 920-921; Fluharty, 632 A.2d at 313-314. *fn4

In Blackwell, (supra) , we set forth the law to be applied when a petitioner attacks the validity of his guilty plea after sentencing, as follows:

... "An attempt to withdraw a plea of guilt after sentencing will only be granted where the defendant is able to show that his plea was the result of manifest inJustice." Commonwealth v. Holbrook, 427 Pa. Super. 387, 394, 629 A.2d 154, 158 (1993). To establish manifest inJustice, a defendant must show that his plea was involuntary or was given without knowledge of the charge. Id. The decision to plead guilty must be personally and voluntarily made by a defendant. Commonwealth v. Fluharty, 429 Pa. Super. 213, 632 A.2d 312 (1993). Pa.R.Crim.P. 319 mandates that the guilty plea be offered in open court, and, in order to determine the voluntariness of the plea and whether the defendant acted knowingly and intelligently, the trial court must, at a minimum, inquire into the following six areas:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he has a right to trial by jury?

(4) Does the defendant understand that he is presumed innocent until ...


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