Commonwealth v. Hollenbach

POPOVICH, Judge: This is an appeal from the order of the Court of Common Pleas of Northumberland County dismissing eighteen (18) criminal informations issued against the appellee, Charles A. Hollenbach, for alleged violations of Pa.R.Crim.P. 1100 by the appellant, Commonwealth of Pennsylvania. We reverse. The record reveals that, following the issuance of nineteen (19) criminal informations docketed at Criminal 85-30 through 85-46-and Criminal 85-56 and 85-57, the appellee entered a plea of guilty on July 15, 1985, to the crimes charged. Sentence was scheduled for December 27, 1985. At the time stated, the following exchange took place: — 283 — MR. ROSINI: Your Honor, at this time the Commonwealth would call the matter of Commonwealth of Pennsylvania vs. Charles A. Hollenbach. Mr. Hollenbach was charged with Burglary, Theft by Receiving Stolen Property, and Criminal Mischief by a criminal information filed to CR-85-30. He previously entered a plea of guilty. Now, it is my understanding that at this time that Mr. Hollenbach is present to withdraw his plea of guilty and to be scheduled for trial. He is present in court with his attorney Ann Targonski for the purpose of withdrawing his plea. THE COURT: There is more than just 85-30, there is 85-45, and they go up. MS. TARGONSKI: Your Honor, it goes 31, 32, 33, 34, 35, 36, 37, through— THE COURT: On the sentencing scheduled for today we are going to have a withdrawal of the guilty plea. MS. TARGONSKI: On all counts, yes. THE COURT: On all counts. Let me just get this record straight. Mr. Hollenbach on the 5th of July, 1985, you entered a guilty plea, your age is 22, you have had a tenth grade education, and, you must have worked at some kind of work. What kind work [sic] did you do? THE DEFENDANT: I work for [sic] mentally retarded patients. THE COURT: Well, the purpose Chuck, is so that the record reflects that on the 5th of July, 1985 you entered a guilty plea. Someone of your age, of your education, of your work experience, now wishes to withdraw his guilty plea, and wants to go to trial in this matter, these matters. Is that what you want to do today, withdraw your guilty plea? THE DEFENDANT: Yes. THE COURT: Now, Mr. Rosini, you might want to say something for the Commonwealth on when this is going to be rescheduled. MR. ROSINI: Your Honor, whether it can be scheduled in January the Commonwealth would have 120 days to — 284 — bring the Defendant to trial after his plea. He will be scheduled at the next available opportunity to try the defendant. THE COURT: Well, I know that there were about 12 sentences that I was going to recite but, with the withdrawal of the guilty plea, we’ll mark the matter continued and the Commonwealth will notify Mr. Hollenbach and counsel when this is scheduled for trial. That’s all we will be able to do in this matter today. The next thing we find of record is a Motion by the appellee seeking dismissal of the charges listed at Criminal 85-31 through 85-46 and Criminal 85-56 and 85-571 for the Commonwealth’s alleged violation of Rule 1100, i.e., failure to try the accused within 120 days of the withdrawal of his guilty pleas. A rule was issued upon the Commonwealth, and a hearing was scheduled for July 3, 1986, to determine whether appellee’s Motion to dismiss should be granted. No testimony was given at the hearing. Rather, argument by counsel was heard by the court on the single issue of “basically what occurred on the 27th of December, 1985”. It was the position of the Commonwealth that the pleas of guilty were still in effect, save for the charges lodged at Criminal 85-30 (see footnote 1, supra), inasmuch as “the Court never made any determination to determine whether the defendant’s withdrawal of his guilty plea was fair and just.” This requirement, urged the Commonwealth, exists in the Rules of Criminal Procedure2 and was not complied with by the — 285 — court at the December 27th proceeding. In support of its contention, the Commonwealth cited Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973). Further, it was asserted by the Commonwealth’s attorney that no order granting the appellee’s withdrawal of his pleas having ever been issued, when viewed in conjunction with the “vague and often confusing” December 27th proceeding, justified a denial of the appellee’s Motion. In response, counsel for the appellee argued that the December 27th proceeding dealt with the withdrawal of all of the complaints and criminal information numbers and was not restricted to Criminal 85-30. Albeit there was one guilty plea entered, “that plea was on all counts”, and the appellee’s efforts to inform the court that the pleas to all criminal informations were sought to be withdrawn is evidenced from a reading of the transcript of the December 27th proceeding, so stated the appellee’s counsel. Also, the appellee’s counsel urged that, although a presentence investigation report was completed, the Commonwealth never made any effort to sentence the appellee. “Therefore, [with] the Commonwealth[’s] fail[ure] to file the necessary petitions for extension of time or to bring the defendant to trial in CR 85-31 and the following CR numbers, ... these ... cases docketed to these CR numbers should be dismissed.” By opinion and order dated August 1, 1986, the court below found that, “based on a reading of the transcript of sentencing, ... the Defendant withdrew his guilty pleas to all cases. * * * Since the Defendant was not brought to trial within 120 days of December 27, 1985, the date that he withdrew his guilty pleas, Defendant’s Rule 1100 rights hav[ing] been violated”, he was entitled to a dismissal of the offenses listed at Criminal 85-31 through 85-46 and Criminal 85-56 and 85-57. A timely appeal was filed with this Court, and, thereafter, en banc consideration was granted to resolve the central issue of whether the appellee’s guilty — 286 — pleas were properly withdrawn in accordance with accepted practice in this jurisdiction. We begin our discussion with scrutinizing what appears to be the seminal case on the subject of withdrawal of one’s guilty plea(s) in Pennsylvania, Commonwealth v. Forbes, supra. In Forbes, the defendant had been charged with various offenses stemming from the death of one Sonia Rosenbaum. The sixteen-year-old defendant pleaded guilty to the charges brought against him. However, before a three-judge panel assembled to determine whether the case might constitute murder in the first degree, the defendant stated he desired to withdraw his pleas because he did not commit the crimes charged. The matter was continued so that a hearing on the defendant’s withdrawal request could be held. At the time assigned for such a proceeding, the defendant changed his mind and decided not to pursue his withdrawal request. After the three-judge panel was reconvened, and despite evidence that the defendant was pleading because of his counsel’s threat to withdraw from the case, the pleas of the defendant were allowed to stand, and a first degree murder conviction and life sentence followed. An appeal was filed by the defendant claiming trial court error in its failing to grant his withdrawal request — made prior to any evidence being offered at the degree of guilt hearing and, thus, prior to adjudication and imposition of sentence. The Supreme Court agreed with the defendant’s contention that counsel’s threat to withdraw from the case if he did not plead guilty rendered the pleas involuntarily and unintelligently entered and subject to withdrawal. In the course of its ruling, the Forbes Court made remarks which we find to be germane to the case at bar; to-wit: Although there is no absolute right to withdraw a guilty plea, properly received by the trial court, it is clear that a request made before sentencing — here, that request was made at even an earlier stage — should be liberally allowed. See United States ex rel. Culbreath v. — 287 — Rundle, 466 F.2d 730 (3d Cir.1972); United States v. Young, 424 F.2d 1276 (3d Cir.1970); United States v. Stayton, 408 F.2d 559 (3d Cir.1969); Pa.R.Crim.P. 320; ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1 (Approved Draft, 1968); Note, Pre-Sentence Withdrawal of Guilty Pleas in Federal Courts, 40 N.Y.U.L.Rev. 759 (1965). In United States ex rel. Culbreath v. Rundle, supra, the Third Circuit stated: “It has been recognized under Pennsylvania and Federal law that a trial judge has discretion to refuse a request to retract a plea of guilty since there is no absolute right to withdraw such a plea. However, a request made before sentencing has been generally construed liberally in favor of the accused." Id. at 732 of 466 F.2d (emphasis added) (footnotes omitted). The ABA Standards are in complete harmony with this view. The standards state: “(b) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may 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.” ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1(b) (Approved Draft, 1968). See also Commonwealth v. Neely, 449 Pa. 3, 4, 295 A.2d 75, 76 (1972) (Roberts, J., concurring opinion). Thus, in determining whether to grant a pre-sentence motion for withdrawal of a guilty plea, “the test to be applied by the trial courts is fairness and justice.” United States v. Stayton, supra at 561. If the trial court finds “any fair and just reason”, withdrawal of the plea — 288 — before sentence should be freely permitted, unless the prosecution has been “substantially prejudiced.” ABA Standards Relating to Pleas of Guilty, supra. As the Third Circuit noted: “The liberal rule for withdrawal of a guilty plea before sentence is consistent with the efficient administration of criminal justice. It reduces the number of appeals contesting the ‘knowing and voluntariness’ of a guilty plea, and avoids the difficulties of disentangling such claims. It also ensures that a defendant is not denied a right by trial by jury unless he clearly waives it.” United States v. Young, 424 F.2d 1276, 1279 (3d Cir.1970). 450 Pa. at 190-91, 299 A.2d at 271-72 (Emphasis in original). What is to be garnered from Forbes is the endorsement of a test condoning the liberal withdrawal of a plea of guilty prior to the imposition of sentence, provided, however, it is preceded by the presentment of “any fair and just reason” and the prosecution is not “substantially prejudiced” as a result of the withdrawal. This conclusion has been reaffirmed recently by our Supreme Court in Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984), wherein the viability of the “fair and just reason” test and its role in the analysis of a challenge to a plea were discussed. In Anthony, the Court held, based on a totality of the circumstances test, that the defendant had knowingly, intelligently and voluntarily pleaded guilty to charges of murder and robbery despite the trial court’s failure to advise him, during an extensive colloquy, that a jury verdict must be unanimous. More importantly, as is herein relevant, the Court responded to the defendant’s complaint that the trial court abused its discretion in denying him permission to withdraw his guilty pleas. In the course of finding the claim meritless, Justice McDermott wrote: — 289 — The standard that must be employed when reviewing this claim is whether a defendant has demonstrated a “fair and just reason” for the withdrawal request. Commonwealth v. Forbes, [supra]. Even if a viable reason is advanced for withdrawal, it is allowed only if the Commonwealth has not been substantially prejudiced by reliance on the plea. Commonwealth v. Forbes, supra.6 504 Pa. at 561 & n. 6, 475 A.2d at 1309 & n. 6. Accord Commonwealth v. Kay, 330 Pa.Super. 89, 94 n. 3, 478 A.2d 1366, 1369 n. 3 (1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 2009, 85 L.Ed.2d 293 (1985). As is evident from the remarks of the Anthony Court on the issue of the withdrawal of a guilty plea, such a request “is allowed only if the Commonwealth has not been substantially prejudiced by reliance on the plea.” 504 Pa. at 561 n. 6, 475 A.2d at 1309 n. 6 (Emphasis added). Instantly, not only do we have the absence of any determination by the trial court as to whether the Commonwealth has been “substantially prejudiced” by the withdrawal of the plea, we have a failure to adhere to the Forbes requirement — the initial prong in the test assessing the withdrawal of a plea — that a “fair and just reason” precede the allowance of a plea withdrawal before inquiry into the “substantial prejudice” to the Commonwealth need be made. Neither requirement under Forbes having been met at bar, we can find no support in the record for the trial court’s factual determination that “the Defendant withdrew his guilty pleas.” Cf. Commonwealth v. Iannaccio, 304 Pa.Super. 307, 314-15, 450 A.2d 694, 698 (1982), cert. denied sub nom. Iannaccio v. Pennsylvania, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985) (appellate court is not bound by factual determination made by court below which is wholly lacking support in the record). To remedy the shortcomings sub judice and to establish a compliance with the dictates in Forbes, we deem it prudent — 290 — to remand the matter at hand to afford the appellee the opportunity to proffer some “fair and just reason” warranting a withdrawal of his plea. If the court below so finds, then, in accordance with Forbes, the withdrawal may be granted unless the prosecution has been “substantially prejudiced.” Given our finding that the non-compliance with the two-pronged test of Forbes undermines the determination of the court below that the appellee (“properly”) withdrew his guilty pleas, it necessarily follows that the conclusion by the same court that the Commonwealth’s failure to seek a continuance to avoid the running of the 120-day time limit under Rule 1100(e)(1)3, for the prosecution of the accused, need not be scrutinized. This is so because error in the withdrawal of the pleas dispenses with the need to inquire into the subsequent conduct of the Commonwealth in failing to seek compliance with the time strictures of Rule 1100(e)(1). Order reversed and case remanded for proceedings not inconsistent with this opinion. Jurisdiction relinquished. WIEAND, J., files a dissenting opinion. KELLY, J., files a dissenting opinion in which BECK, J., joins in Parts I & II. Footnotes [1] We note that, although not of record, the briefs of the parties indicate that the offenses appearing at Criminal 85-30 were listed by the Commonwealth for trial. (See Appellee’s Brief at 7; Appellant’s Brief at 8) However, disposition of the same is not mentioned nor is it relevant to our resolution of the case at bar. [2] See Pa.R.Crim.P. 320 and Comment to Pa.R.Crim.P. 321, wherein the Standards Relating to Pleas of Guilty § 2.1(a)(ii), A.B.A. PROJECT ON STANDARDS FOR CRIMINAL JUSTICE is referred to, and upon reading recommends at § 2.1(b) that: 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. (Emphasis added). [6] Because appellant has failed to satisfy the "fair and just” standard, there is no need to reach the issue of whether the Commonwealth has been prejudiced in its reliance on the plea. [3] Rule 1100(e)(1) reads: When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.