Commonwealth v. Spencer

496 A.2d 1156, 344 Pa. Super. 380
CourtSupreme Court of Pennsylvania
DecidedAugust 2, 1985
Docket3348; 211
StatusPublished
Cited by8 cases

This text of 496 A.2d 1156 (Commonwealth v. Spencer) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Spencer, 496 A.2d 1156, 344 Pa. Super. 380 (Pa. 1985).

Opinions

SPAETH, President Judge:

This case arises on two appeals. The first appeal, No. 3348 Philadelphia 1983, is an appeal from judgment of sentence imposed after appellant pleaded guilty to charges of robbery, burglary, conspiracy, and possession of an instrument of crime. Appellant argues that in imposing sentence of 35 to 70 years in prison, the sentencing judge abused his discretion. We agree, and vacate the judgment of sentence and remand for resentencing before a different judge. The second appeal, No. 211 Philadelphia 1984, is an appeal from the trial court’s order denying appellant’s motion to withdraw his guilty plea. We must quash this appeal.

[383]*383-l-

We shall start by considering Appeal No. 211 Philadelphia 1984 — the appeal from the trial court’s order denying appellant’s motion to withdraw his guilty plea. For if we were to conclude that the motion should have been granted, we should not reach the issue raised by Appeal No. 3348 Philadelphia 1983 — whether in imposing sentence on the plea, the sentencing judge abused his discretion.

In support of Appeal No. 211, appellant particularly relies upon our decision in Commonwealth v. Williams, 333 Pa. Super. 77, 481 A.2d 1230 (1984), which he argues is controlling. In Williams the assistant district attorney promised, as part of a plea agreement, not to make any sentencing recommendation, but then, at the sentencing proceeding, “pure and simple, he broke his word,” id., 333 Pa.Superior Ct. at 81, 481 A.2d 1232, and recommended a sentence of incarceration. The sentencing judge imposed a sentence of incarceration, stating in his opinion, however, that the assistant district attorney’s recommendation had not influenced his decision. Id., 333 Pa.Superior Ct. at 83, 481 A.2d at 1234. We accepted this statement, id., but held that even so, the only appropriate remedy for the assistant district attorney’s violation of the plea agreement was to permit the defendant to withdraw his plea. We noted that as part of the plea agreement certain charges had been nol prossed, and directed that on remand those charges should be reinstated so that the defendant could “plead anew to all the original charges.” Id.

In arguing Williams to us as controlling, appellant emphasizes the similarity in the facts of Williams and this case. The assistant district attorney in Williams was the same assistant district attorney who appeared at the sentencing proceeding in this case, and the sentencing judge was also the same. At the sentencing proceeding in this case the assistant district attorney “recommend[ed] a period of incarceration of no less than 35 to 70 years in jail.” N.T. 11/17/83, at 17. Appellant’s counsel protested that “the notes of the [guilty plea] hearing before Your Honor re-[384]*384fleets [sic] the fact that it was agreed that the Commonwealth would not make any specific recommendation as to any possible sentence.” Id., at 18. To this, the assistant district attorney replied: “Your Honor, I have reviewed the notes of testimony in court this morning, and at no place in the notes of testimony that I can find does it indicate that the Commonwealth will not make a recommendation.” Id. In fact, a review of the notes of testimony of the guilty plea proceeding discloses that when appellant entered his plea, the assistant district attorney then representing the Commonwealth — a different assistant district attorney from the one who appeared at sentencing — had asked appellant, “Do you understand there will be no specific recommendations as to any sentence in this case by the Commonwealth; do you understand that?”, to which had appellant replied, “Yes.” N.T. 12/3/81, at 24. The sentencing judge stated: “I don’t remember whether Mr. McGovern [the assistant district attorney who had appeared at the guilty plea proceeding] said he was going to recommend any specific sentence. I don’t believe he did. And I think defense counsel may be right that the recommendation would be that the sentence would be left up to me.” N.T. 11/17/83, at 19-20. The judge added: “In any event, counsel for both the Commonwealth and most defense counsel in this City know I don’t pay any attention to the Commonwealth’s recommendation at any time for any reason. It is my job to do the sentencing, not [District Attorney Edward G.] Rendell’s.” Id., at 20. The judge then imposed sentence total-ling 35 to 70 years in prison, to be served consecutive to a sentence of 10 to 20 years that appellant was serving for homicide. Id., at 28-32. In his opinion in response to appellant’s appeal, the judge noted appellant’s argument that in recommending a sentence, the assistant district attorney had violated the plea agreement. Slip op. of tr. ct. at 6. Rejecting this argument, the judge stated that “[t]he sentence imposed was that determined solely by this Court.” Id. at 7.

[385]*385The Commonwealth acknowledges that Williams is similar to this case. It argues, however, that Williams was wrongly decided; in its view, the remedy ordered in Williams — permitting the guilty plea to be withdrawn — was not appropriate. It argues, therefore, that we certify this case for argument before the court en banc so that Williams may be reconsidered.

We have concluded that we may not consider either appellant’s argument that Williams is controlling, or the Commonwealth’s argument that Williams was wrongly decided. The reason for this conclusion, as will appear, is that in Williams the issue of the effect of the assistant district attorney’s conduct was preserved for appellate review, while here it has not been preserved.

As our citations to the notes of testimony have indicated, the guilty plea proceeding was conducted on December 3, 1981, and the sentencing proceeding, on November 17, 1983. On November 25, 1983, appellant filed a timely motion to modify sentence, Pa.R.Crim.P. 1410 (motion to modify sentence shall be filed with sentencing court within 10 days of sentence), which the trial court denied on November 28, 1983. On November 30, 1983, appellant filed a supplemental motion to modify sentence. In response, the trial court signed a rule to show cause why appellant’s sentence should not be vacated, and made the rule returnable on January 4, 1984. Attached to the rule to show cause was an order vacating the judgment of sentence; however, the order was not signed by the trial court.

On December 14, 1983, appellant filed an appeal from the judgment of sentence. This was Appeal No. 3384 Philadelphia 1983.

On January 4, 1984,1 the return date of the rule issued on November 30, 1983, the trial court heard appellant’s motion to modify sentence. At the start of the hearing, appellant’s counsel handed to the court “a motion to withdraw the guilty plea nunc pro tunc.” N.T. 1/4/84, at 2. The motion [386]*386was apparently not filed with the clerk, and it is not contained in the record transmitted to us. The court accepted the motion, however, and directed appellant to “[proceed.” Id. In the course, and at the conclusion, of the hearing, the court denied both the motion to withdraw the guilty plea, id., at 13, and the motion to modify the sentence, id., at 33. The court then “reimposed” the sentence that had been imposed on November 17, 1983. Id.

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Commonwealth v. Spencer
496 A.2d 1156 (Supreme Court of Pennsylvania, 1985)

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Bluebook (online)
496 A.2d 1156, 344 Pa. Super. 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-spencer-pa-1985.