Commonwealth v. Yager

CAVANAUGH, Judge,

dissenting.

I agree that the majority disposition represents a perfectly reasonable result in response to appellant Yager’s opportunistic attempt to set aside his 1991 guilty plea. I disagree with the methodology whereby our court undertakes to modify a *443clearly enunciated authority established by our supreme court. As the majority readily concedes, the guilty plea colloquy in this case was deficient in that Yager was not advised of the potential for consecutive sentences for multiple convictions. In Commonwealth v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992), a unanimous supreme court1 announced:

A defendant obviously cannot be expected to plead intelligently without understanding the consequences of his plea. In order to understand the consequences of his plea it is clear that a defendant must be informed of the maximum punishment that might be imposed for his conduct. Commonwealth v. Kulp [476 Pa. 358, 382 A.2d 1209 (1978)1 supra. To hold that the term “maximum” does not include the total possible aggregate sentence is clearly incorrect. And to hold that a plea was intelligently and understandingly entered where a defendant was not informed that consecutive sentences could be imposed upon his multiple convictions is equally incorrect.

532 Pa. 317, 323, 615 A.2d 1305, 1308.

Pennsylvania has sought to give credibility to guilty plea procedures and has therefore adopted formulistic requirements for a valid plea. Pa.R.Crim.P. 319 elaborates the requirements of a valid plea and Persinger declaratively stated that the possible aggregate sentence must be included in the colloquy. (“We find that the absence of this inquiry from the transcript renders the colloquy defective” [615 A.2d at 1308]). In order to avoid the harsh result required by the defective colloquy in this case, the majority is impelled to adopt a new “totality of circumstances” standard and to rely on trial counsel’s hypothetical reconstruction of his discussions with his client. (“ I would have indicated ... ”) (“I most likely would have indicated ... ”).

Our Supreme Court must be assumed to be aware of the consequences of its decisions. It is our duty to follow clear authority (or perhaps in a case such as this, voice disagreement with the application of that authority) but in any event *444precedent must be followed.2 I would reverse and remand for trial.

. One justice concurred in the result.

. See, McMahon v. Shea, 441 Pa.Super. 304, 657 A.2d 938 (1995) allocatur granted, 544 Pa. 611, 674 A.2d 1074, Cavanaugh, J., dissent.