Opinion
September 10, 1973.
April 11, 1974.
Criminal law — Practice — Guilty plea — Motion to withdraw made prior to sentencing — Lack of fair cause and just reason for allowing withdrawal of plea — Discretion of trial court.
1. The defendant entered a guilty plea after an extensive colloquy. Two months later (and prior to sentencing) he moved to withdraw the plea on the grounds that a jail sentence would not help him. It was Held that the court below properly refused the motion as there was no fair cause and just reason for allowing the withdrawal of the guilty plea.
2. A withdrawal of a guilty plea is within the sound discretion of the trial court.
3. A request to withdraw a guilty plea made before sentencing should be liberally allowed, and such a request when supported by any fair and just reason should not be denied unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea.
4. The mere fact that the Commonwealth is delayed in its attempt to prosecute a defendant is not in itself sufficient reason for denying a request to withdraw a guilty plea.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and SPAETH, JJ.
Appeal, No. 1476, Oct. T., 1973, from judgment of sentence of Court of Common Pleas of Delaware County, Dec. T., 1972, Nos. 207, 208, 210, and 211, in case of Commonwealth of Pennsylvania v. Richard Holcomb. Judgment of sentence, affirmed.
Indictments charging defendant with robbery, robbery by assault and force, robbery with accomplice or while armed and by violence, burglary, aggravated assault and battery, and conspiracy. Before REED, JR., J.
Pleas of guilty entered and judgment of sentence entered thereon. Defendant appealed.
R. Barclay Surrick, Assistant Public Defender, for appellant.
Philip J. O'Malley, Assistant District Attorney, for Commonwealth, appellee.
SPAETH, J., concurred in the result.
Submitted September 10, 1973.
Appellant contends that the lower court erred in refusing a request for a withdrawal of his guilty pleas prior to sentencing.
Appellant pleaded guilty to burglary, larceny, aggravated assault and battery, robbery and conspiracy. The trial court conducted an extensive colloquy consuming over 28 pages of the notes of testimony, and being satisfied that the plea was being tendered knowingly and voluntarily, accepted the pleas of guilty, but deferred sentencing pending a pre-sentence investigation. On June 8, 1973, two months after the appellant entered his guilty plea to said charges, the appellant appeared in court for sentencing. At this time, appellant's counsel informed the sentencing judge that the appellant wished to withdraw his guilty plea. The request was denied, and appellant was sentenced. Appellant immediately took an appeal to this Court, and we remanded the case to the lower court by a Per Curiam Opinion dated November 8, 1973, with direction that appellant's counsel prepare a proper brief on the submitted issues.
Appellant argues that under Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), he is entitled to a withdrawal of his guilty plea. In Forbes, our Supreme Court recognized that withdrawal of a guilty plea is within the sound discretion of the trial court, but stated that "a request made before sentencing . . . should be liberally allowed. . . .", and, that such a request when supported by "any fair and just reason" should not be denied "unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea." Forbes, at 190, 191, citing ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1(b) (Approved Draft, 1968).
In the instant case, the trial court points out that "the defendant simply wanted to withdraw his plea for no other reason than that a jail term would not help him." The Memorandum Opinion by Howard F. REED, Jr., of the Court of Common Pleas of Delaware County, traces the extensive colloquy, noting even a portion advising the appellant that he was in no way bound to enter a plea and "if he had changed his mind overnight that was his right." (Emphasis deleted) We have searched the record and find no "just reason" for appellant's request. We are not persuaded by counsel's contention that he was summarily denied the request before he could offer a reason. Counsel is not rendered mute or dumbfounded by every negative ruling of the Court. Neither may we accept an implication that a trial judge would muffle any discussion or qualification that addresses itself to the question in a significant manner. If counsel had a "fair cause and just reason", he should have announced it. His failure to do so can only be construed as a lack of any such cause, and merely requested as a tactical measure. We do not agree, however, that the mere fact the Commonwealth is delayed in its attempt to prosecute the defendant is sufficient reason for denying a request, since this would sanction the unbridled and arbitrary exercise of a trial court's discretion to destroy the effect of a valid and just claim in the balance.
Judgment of sentence is affirmed.
SPAETH, J., concurs in the result.