Commonwealth v. Whelan

ROBERTS, Justice,

dissenting.

I

In Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), this Court concluded that, whenever a person accused of crime elects to plead guilty, the trial court must conduct an on-the-record colloquy in full compliance with Pa.R. Crim.P. 319(a). As this Court stated in Commonwealth v. Tabb, 477 Pa. 115, 119, 383 A.2d 849, 851 (1978), “[ajbsent *423such an on-the-record colloquy, an appellate court is unable to conclude that the plea of guilty was entered knowingly, voluntarily, intelligently, and understanding^.” The opinion of Mr. Justice Larsen concedes that the record of the guilty plea colloquy indicates that no inquiry was made to ascertain whether appellant understood that the trial court was not obligated to accept the terms of the plea bargain agreement. Nonetheless, it sustains the guilty plea by invoking harmless error. I dissent.

The Comments to Rule 319(a) recommend that, at a minimum, a guilty plea colloquy must demonstrate that inquiry was made into the following:

“(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 the right to trial by jury?
(4) Does the defendant understand that he is presumed innocent until he is found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?”

In Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976), the colloquy did not include an explanation of the charges. We reversed and remanded for a new trial holding that “[fjailure to satisfy these minimal requirements will result in reversal.” Id., 466 Pa. at 547, 353 A.2d at 827.

We reaffirmed Dilbeck in Commonwealth v. Willis, 471 Pa. 50, 52, 369 A.2d 1189, 1190 (1977), stating that each of the six questions noted in the comment are “mandatory during a guilty plea colloquy and the failure to ‘satisfy these minimal requirements will result in reversal.’ ” (emphasis in original). The trial court’s failure to ensure defendant understood the presumption of innocence prompted our reversal and remand for a new trial. See also Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978) (colloquy made*424quate in absence of discussion of range of fines and sentences); Commonwealth v. Mack, 466 Pa. 12, 351 A.2d 278 (1976) (colloquy inadequate with regard to waiver of jury trial); Commonwealth v. Thompson, 466 Pa. 15, 351 A.2d 280 (1976) (insufficient factual basis established during colloquy). Each of the requirements of Rule 319(a) assures that the defendant pleading guilty fully understands what rights have been waived and what rights remain. Whether appellant understood the extent of the trial court’s obligation to adhere to the terms of the agreement is as essential to a knowing and intelligent plea as each of the other requirements of Rule 319(a).

The opinion of Mr. Justice Larsen concludes that the error here was harmless because as a matter of fact the terms of the bargain were effectuated. For a guilty plea to be valid, the defendant must understand all the consequences that could flow from his plea. Whether or not those consequences do result, is not relevant to whether a plea has been entered intelligently and knowingly. Where the colloquy fails to dispel the defendant’s misapprehension that the court is bound by a plea agreement, the plea cannot stand. See generally, Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975); Commonwealth v. Dickerson, 449 Pa. 76, 295 A.2d 282 (1972). As this Court concluded in Commonwealth v. Wright, 444 Pa. 588, 591, 282 A.2d 266, 267 (1971):

“To render an intelligent and knowing decision with respect to a choice between pleading guilty and standing trial, reason dictates that the one making the choice be aware of what each possibility entails. If he is not, his choice can hardly be said to be ‘intelligent.’ ”

Under Dilbeck, Willis, Kulp, Tabb, Ingram, Thompson, and Rule 319, judgment of sentence must be reversed and appellant must be awarded a new trial.

II

Part I of this dissenting opinion expresses my view of the dispositive issue of this appeal. I believe it necessary, how*425ever, to comment upon one other aspect of the opinion of Mr. Justice Larsen. The opinion purports to create a new standard by which pre-sentence motions to withdraw guilty pleas will be adjudicated. The opinion of Mr. Justice Larsen states that where the plea was entered after the Commonwealth commenced its case at trial, pre-sentence withdrawal is permitted “only when compelling reasons exist.” Such a test shifts the burden of proof on a motion to withdraw from the Commonwealth to the defendant. Moreover, it unduly circumscribes the broad discretion we have heretofore granted trial courts in these matters.1

Clearly, there is no absolute right to withdraw a guilty plea. Nonetheless, in view of the gravity of a guilty plea and the numerous waivers of rights which attend it, pre-sentence motions to withdraw are to be liberally granted. Commonwealth v. Santos, 450 Pa. 492, 494, 301 A.2d 829, 831 (1973). Because “[i]t reduces the number of appeals contesting the ‘knowing and voluntariness’ of a guilty plea, and avoids the difficulties of disentangling such claims,” Commonwealth v. Forbes, 450 Pa. 185, 191, 299 A.2d 268, 271 (1973), quoting United States v. Young, 424 F.2d 1276, 1279 (3d Cir. 1970), the rule of “liberality” also furthers efficient judicial administration. Accord Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976).

Accordingly, we adopted § 2.1(b) of the ABA Standards Relating to Pleas of Guilty (Approved Draft, 1968)2 in Commonwealth v. Forbes, supra, and articulated the following test for adjudicating pre-sentence motions to withdraw:

*426“If the trial court finds ‘any fair and just reason’, withdrawal of the plea before sentence should be freely permitted, unless the prosecution has been ‘substantially prejudiced.’ ”

Id., 450 Pa. at 191, 299 A.2d at 271. In Commonwealth v. Morales, 452 Pa. 53, 305 A.2d 11 (1973), we applied the Forbes test to review denial of a pre-sentence motion to withdraw where the plea had been entered after the prosecution had completed, presentation of its case-in-chief. There is no reason to depart from the Forbes standard in this case. Applying that standard I would uphold the trial court’s exercise of its discretion in denying appellant’s motion because the Commonwealth would have been substantially prejudiced by withdrawal of the plea.

Since the colloquy failed to comply with the mandate of Rule 319(a) and the applicable cases, I would reverse and remand for a new trial.

. See Pa.R.Crim.P. 320 which provides:

“At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.”

. § 2.1(b) provides:

“In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant must not withdraw his plea of guilty or nolo contendere as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea.”