Commonwealth v. Zorn

580 A.2d 8, 397 Pa. Super. 231, 1990 Pa. Super. LEXIS 2554
CourtSuperior Court of Pennsylvania
DecidedAugust 17, 1990
DocketNo. 1901
StatusPublished
Cited by11 cases

This text of 580 A.2d 8 (Commonwealth v. Zorn) is published on Counsel Stack Legal Research, covering Superior 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. Zorn, 580 A.2d 8, 397 Pa. Super. 231, 1990 Pa. Super. LEXIS 2554 (Pa. Ct. App. 1990).

Opinion

TAMILIA, Judge.

Appellant Michael E. Zorn appeals from judgment of sentence entered September 19, 1989, after appellant pled guilty to robbery,1 prohibited offensive weapon 2 and possessing instruments of crime3 and was sentenced to a term of imprisonment of five to ten years on the robbery count.4 The charges arose out of the robbery of a gas station by appellant using a sawed-off shotgun. A guilty plea hearing was held on July 25, 1989, at the conclusion of which the district attorney indicated that she and appellant’s trial counsel had previously discussed the applicability of the mandatory sentence provision of 42 Pa.C.S. § 9712, and that she was giving notice of the Commonwealth’s intention to seek the mandatory sentence. Sentence was deferred until [233]*233September 19, 1989 pending receipt of a presentence investigation.

On appeal, appellant argues trial counsel was ineffective for failing to file a motion to withdraw the guilty plea where there was no notice of the application of a mandatory sentence before the plea was entered.

A successful claim of counsel’s ineffectiveness must address three inquiries: (1) whether the underlying claim is of arguable merit; (2) whether counsel had any reasonable basis for his chosen course of conduct; and (3) whether the course of conduct worked to the client’s prejudice, i.e., had an adverse effect on the outcome of the proceedings. Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988). The law presumes that counsel is effective and the burden of establishing ineffective assistance is on the appellant. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985).

Commonwealth v. Bruner, 388 Pa.Super. 82, 92, 564 A.2d 1277, 1287 (1989). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

The Supreme Court recently found the fact of a guilty plea to be of “vital significance.”

A guilty plea is an acknowledgement by a defendant that he participated in the commission of certain acts with a criminal intent; he acknowledges the existence of facts and intent; facts he acknowledges may or may not be within the powers of the Commonwealth to prove.

Commonwealth v. Ryan, 523 Pa. 547, 549, 568 A.2d 179, 181 (1990), quoting Commonwealth v. Anthony, 504 Pa. 551, 558, 475 A.2d 1303, 1307 (1984).

A person may attack a guilty plea after sentencing on three grounds: (1) the legality of the sentence; (2) the jurisdiction of the court; and (3) the voluntary, knowing and intelligent nature of the plea itself. Commonwealth v. Alston, 387 Pa.Super. 393, 564 A.2d 235 (1989). In the instant case, appellant filed a pro se petition for reconsideration of sentence which stated as grounds for relief:

[234]*234Misrepresentation by counsel. Did not fully understand sentencing guidelines, misunderstand [sic] of charges. The charges were never explained to him by counsel.

In the interests of fairness and judicial economy, this Court will view appellant’s petition as an attack on the voluntariness of the plea and address this claim on its merits.

To be valid, a plea of guilty must be voluntarily, knowingly and intelligently made by the defendant, i.e., “with an understanding of the nature of the charges against him, his right to a jury trial and an awareness of the consequences of his plea.” Commonwealth v. Enty, 442 Pa. 39, 40, 271 A.2d 926, 927 (1971), quoted in Commonwealth v. Khorey, 521 Pa. 1, 4, 555 A.2d 100, 104 (1989). It is now well established in Pennsylvania that a defendant seeking to withdraw his guilty plea after sentence has been imposed must demonstrate that a manifest injustice has occurred justifying withdrawal. Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). In determining the validity of a plea, this Court will look at the totality of the circumstances surrounding the plea. Schultz, supra.

In attacking the validity of his guilty plea, appellant relies on the decisions of this Court in Commonwealth v. Reagan, 848 Pa.Super. 589, 502 A.2d 702 (1985) (en banc), and Commonwealth v. Leonhart, 358 Pa.Super. 494, 517 A.2d 1342 (1986). For the reasons given infra, we find these decisions distinguishable from the case at bar.

In Reagan, the defendant pled guilty to driving while under the influence of alcohol, 75 Pa.C.S. § 3731(a), and was sentenced under the recidivist provision of the statute because of an alleged prior conviction for driving while under the influence of alcohol. This Court noted the similarities between the sentencing provisions of the drunk driving law and the mandatory minimum sentencing statutes, 42 Pa.C.S. § 9712 et seq., and found the notice provisions of the mandatory minimum sentencing laws to be helpful in resolving the issue before it.

[235]*235Appellant argues Reagan establishes the requirement of notice of a mandatory sentence prior to a guilty plea. While there is merit in that contention, we find it did not hold such a requirement was apposite to that case because the issue was not raised. In Reagan, the issue was posited in the form of a claim of error by the Commonwealth arising from the trial court’s refusal to apply the mandatory sentencing factor to the case since the recidivist nature of the offense was not alleged in the information. Following a finding that the trial court was in error in not applying the mandatory sentence to a recidivist, while not relevant to its decision, this Court distinguished a trial from a guilty plea in applying a notice requirement.

When a defendant pleads guilty rather than proceeds to trial, however, the defendant must be advised of the recidivist statute prior to entering his guilty plea. There is no dispute that a plea entered without knowledge of not only the maximum penalty which could be imposed, but also the minimum penalty which must be imposed, would not be a valid plea. Knowledge of the higher mandatory minimum sentence for repeat offenders may affect the defendant’s decision to plead guilty even though knowledge of the recidivist penalty would not affect a defendant’s defense for the crime charged.

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Cite This Page — Counsel Stack

Bluebook (online)
580 A.2d 8, 397 Pa. Super. 231, 1990 Pa. Super. LEXIS 2554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-zorn-pasuperct-1990.