Commonwealth v. Cole

McEWEN, Judge,

concurring.

I am in absolute agreement with the majority view that the presentence motion to withdraw a guilty plea was *338properly denied by the trial court. Certainly the Commonwealth would have been substantially prejudiced by the withdrawal of the plea of guilty, and, just as surely, appellant was trifling with the justice system. I write, however, to reecho the particular view to which I cling, albeit in rather lonely fashion until the excellent expression by my eminent colleague of the majority view.

It has long been my position that the Supreme Court in Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), and Commonwealth v. Woods, 452 Pa. 546, 307 A.2d 880 (1973), did not proclaim as a principle, applicable to all such presentence motions, that the assertion of innocence is per se a “fair and just” reason to permit withdrawal of a guilty plea. See: Commonwealth v. Ortiz, 334 Pa.Super. 117, 482 A.2d 1110, 1111-1113 (1984) (Dissenting Opinion by McEwen, J.). The admonition of Forbes and Woods that a presentence request to withdraw a guilty plea be “construed liberally” in favor of the accused, is not a direction to blithely ignore the obvious, or to heedlessly abandon reason. Moreover, I submit that scrutiny of Forbes and Woods makes clear beyond dispute that:

The Supreme Court requires that an examination of the entire record be conducted whenever such motions are presented.
The Supreme Court found that “fair and just reason” was presented in those benchmark cases only by the assertion of innocence together with the fact that it was made so early in the proceedings.
The Supreme Court, in either of these decisions, could well have stated — but did not — that the assertion of innocence by itself offered a “fair and just” reason for withdrawal.

Thus it is that I view the law to be that, when an accused undertakes a presentence effort to withdraw a guilty plea, the trial court is required to consider the totality of the circumstances reflected by the record 1, and that a pre-sen*339tence assertion of innocence may compose the required “fair and just reason” provided that the totality of circumstances reflected by the record does not establish otherwise.

. The practice, when a guilty plea is entered, of simply securing from the accused an affirmative answer to questions containing a myriad of *339specific details of the crimes charged, has proved expeditious. Perhaps, however, it better serves to address such colloquy questions to the accused as require the accused to provide specific details of the crimes to which the plea of guilty is entered. Such a colloquy not only insures that the plea is voluntarily and understandingly entered, but also enables more perceptive study, in the event that the accused subsequently seeks to withdraw the guilty plea, of whether "fair and just reason” to withdraw the plea has been presented.