Commonwealth v. Fenton

POPOVICH, Judge,

dissenting:

I respectfully dissent. This appeal presents an opportunity to interpret the gradation section of the escape statute, 18 Pa.C.S.A. § 5121. To resolve this appeal correctly, I believe it is necessary to address an issue raised in appellant’s post-verdict motions but not directly argued on appeal. Following his guilty plea on the felonious escape charge, the appellant filed a motion to withdraw his plea and a motion to modify sentence. Therein, the appellant alleged, inter alia, that the escape charge was, in fact, a misdemeanor of the second degree not a felony of the third degree; thus, his plea was not “knowing,” and his sentence was illegal. On appeal, Howard Fenton contends the lower court erroneously denied his petition to withdraw his plea.

The central question to the resolution of this issue is whether the appellant’s crime of escape was correctly graded as a felony of the third degree.

The pertinent sections of the escape statute, 18 Pa.C.S.A. § 5121, read as follows:

(a) Escape. — A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
* *****
(d) Grading.—
*547(1) An offense under this section is a felony of the third degree where:
(i) the actor was under arrest for or detained on a charge of felony or following conviction of crime;
(ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or
(iii) a public servant concerned in detention of persons convicted of crime intentionally facilitates or permits an escape from a detention facility.
(2) Otherwise an offense under this section is a misdemeanor of the second degree.

Upon review of the record, I am convinced that the appellant’s crime of escape was incorrectly graded as a felony of the third degree when, in fact, it should have been graded as a misdemeanor of the second degree. The record is devoid of any evidence which would warrant a grading of felony in the third degree. First, the appellant was originally incarcerated on the charges of criminal mischief, a misdemeanor of the second degree, and disorderly conduct, a misdemeanor of the third degree. Therefore, his escape was not a felony of the third degree pursuant to § 5121(d)(1)(i).

I interpret the language of § 5121(d)(1)(i), “the actor was under arrest for or detained on a charge of felony or following the conviction of crime,” to mean the actor was arrested for, detained on, or convicted of a felony.1 To demonstrate why such an interpretation is logical, consider the following situation: defendant is convicted of a summary offense and placed on work release while incarcerated in the county jail. 18 Pa.C.S.A. § 1105 (summary conviction punishable by imprisonment up to ninety days). He fails to return to the jail from work and, later, is captured without *548incident at his home. If we were to interpret “following the conviction of crime” to mean following the conviction of any crime, then defendant’s offense would be graded as a felony escape — the same grading which would be imposed upon an incarcerated rapist who used excessive force in effecting his escape from a maximum security prison. Such an anomalous result could not have been the legislature’s intent. Rather, logic dictates that the grading of the escape offense should be related, at least in part, to the grading of the underlying crime. I believe that was the legislature’s intent when drafting § 5121(d)(1)(i), ergo, my current interpretation.

Second, the facts unequivocally demonstrate that the appellant escaped simply by failing to appear at the jail for his weekend confinement. Thus, the appellant did not use force “to effect” his escape, and the crime cannot be considered a felony under § 5121(d)(1)(iii).2

And third, there was no evidence presented (nor alleged) which would support a felony charge under § 5121(d)(1)(iii). Accordingly, I would find that the appellant’s crime of escape should have been graded a misdemeanor of the second degree, § 5121(d)(2).

When reviewing a request to withdraw a guilty plea after sentence has been entered, this Court 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, 499, 546 A.2d 632, 635 (1988); Commonwealth v. Middleton, 504 Pa. 352, 473 A.2d 1358 (1984); Commonwealth v. West, 336 Pa.Super. 180, 485 A.2d 490 (1984). Under the manifest injustice standard, the petitioner must show that his plea was involuntary or *549was entered without knowledge of the charge. Commonwealth v. Glaze, 366 Pa.Super. 517, 521, 531 A.2d 796, 798 (1987); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982).

Instantly, I am convinced that the appellant pleaded guilty to the correct crime but one incorrectly graded as a felony instead of a misdemeanor. Ordinarily, a defendant who enters a guilty plea after an incorrect explanation of the possible sentence will be allowed to withdraw the plea under the manifest injustice standard. Commonwealth v. Leonhart, 358 Pa.Super. 494, 517 A.2d 1342 (1986), appeal denied, 515 Pa. 620, 531 A.2d 428 (1987) (withdrawal allowed where defendant not informed at colloquy of Commonwealth’s intention to proceed under mandatory sentencing provision). However, under the facts before us, the appellant will not suffer prejudice on the level of manifest injustice if he is not allowed to withdraw his plea. The appellant’s ignorance of what I believe to be the correct possible sentence did not deprive him of his right to weigh the alternatives of going to trial versus entering a guilty plea, Shaffer, supra, because his true possible sentence was, in reality, less than the possible sentence upon which he based his decision.

The appellant pleaded guilty to the crime of escape which was correctly defined by the lower court citing 18 Pa.C.S.A. § 5121(a). Under the statute, the grading of the escape as a felony or a misdemeanor relates not to the guilt or innocence of the defendant but to the punishment to be imposed. Commonwealth v. Jones, 279 Pa.Super. 93, 98, 420 A.2d 1046, 1049 (1980). Having determined that the appellant’s escape was incorrectly graded, I would hold that manifest injustice is prevented, not by allowing the appellant to withdraw his plea, but rather by vacating the illegal felony sentence and remanding for resentencing as a misdemeanor of the second degree. Commonwealth v. Nixon, 328 Pa.Super. 250, 252-255, 476 A.2d 1313, 1314-1315 (1984); Commonwealth v. Drawbaugh, 335 Pa.Super. 120, 121, 483 A.2d 985, 986 (1984) (defendant sentenced on *550escape as felony three, rather than appropriate grade of misdemeanor two, sentence vacated, case remanded).

. If one was to interpret the statute literally, the only ocassion when an escape would be graded as a misdemeanor of the second degree is when a person escapes after an arrest on a summary or misdemeanor offense while still in “official detention” but prior to conviction. I question why the Legislature saw fit to include subsection (2) when the possibility of an “otherwise” is so remote.

. The Arrest Warrant Affidavit of Ptlm. Reginald Douglas of the Towanda Police states "[Officer] Dewey said that he and a Sayre police officer arrested the defendant at that time and had to use physical effort to remove him from the [Lehigh Tavern].” This is the only evidence of force exercised by the appellant which could be considered to be related to the escape. However, the appellant used force to resist arrest, not "to effect" his escape as required by the statute. In addition, his conviction on simple assault charges is wholly unrelated to the escape charge.