Commonwealth v. Burno

*568SPAETH, Judge,

dissenting:

As the majority recognizes, Commonwealth v. Newell, 486 Pa. 478, 406 A.2d 733 (1979), and Commonwealth v. Weiss, 289 Pa.Super. 1, 432 A.2d 1020 (1981), require that the plea bargain be favorable, and that the defendant understand the bargain and be satisfied to accept it rather than go to trial.

Although the majority characterizes the bargain here as favorable, the Commonwealth did not. Thus at the guilty plea hearing, in support of the court’s accepting the plea, the assistant district attorney said:

As the Court well knows a life sentence in Pennsylvania at the present time carries an average sentence in the neighborhood of fifteen years. This defendants [sic] guilty plea to that minimum sentence in effect provides the Commonwealth with the punishment that the law presently imposes as a practical matter, although not as a theoretical matter, and therefore we feel that the plea is justified based on all of those factors.
R.R. at 29a-30a.

But if we treat the bargain as favorable, still, appellee as defendant could not have understood it. For as the majority acknowledges, there was no discussion of the elements of the crime charged or of the permissible range of sentences. Since appellant could not have understood the bargain, he could not have been satisfied—that is, he could not make an intelligent decision to be satisfied—to accept it rather than go to trial.

Newell and Weiss do not support the majority but are contra. In Newell, “Appellant knew there was a possibility of receiving first degree murder, and he also knew the theft charges would be dropped by pleading guilty to third degree murder.” 486 Pa. at 477, 406 A.2d at 734. In Weiss, the elements of the crime charged (burglary) were defined, and appellant knew he was “facing 40 to 60 years.” 289 Pa.Super. at 7, 432 A.2d at 1023. He got only 4 to 10 years. Thus, in both cases the defendant got a bargain, he understood the bargain, and he could make an intelligent decision *569to accept it rather than go to trial. Here, these requirements are not satisfied.

The order of the lower court should be affirmed.