Commonwealth v. Kulp

¶1Dissenting Opinion by

¶2Appellant contends that his guilty plea was not knowingly and understandingly made. Further, appellant claims that the sentencing court considered certain unproven allegations of other, more serious crimes in determining appellant’s, term of imprisonment.

¶3The facts that led to appellant’s arrest are straightforward. On March 1, 1974, appellant sold approximately *402one ounce of marijuana to an undercover narcotics agent, Trooper Walter Mazeikas. Appellant made the sale while he was working at the Citgo Gas Station on Washington Boulevard and Railway Street in Williamsport, Lycoming County.

¶4Subsequently, appellant was charged with delivery of a controlled substance,1 possession of a controlled substance,2 and criminal conspiracy.3 Appellant appeared before President Judge Geeevy and pled guilty to all charges on June 28, 1974. The court deferred sentencing pending a pre-sentence report. On August 26, 1974, appellant again appeared before the court and was sentenced to a term of six months’ to two years’ imprisonment and to pay a fine of two hundred dollars.

¶5Initially, appellant contends that the colloquy that accompanied his plea of guilty did not demonstrate a knowing and intelligent waiver of his right to trial because appellant was not sufficiently apprised of the nature of the charges against him. The appellant relies on Commonwealth v. Ingram, 455 Pa. 198, 203-04, 316 A. 2d 77, 80 (1974), decided on January 24, 1974: “In order to demonstrate that a defendant possesses such understanding, he certainly must be told more than just that he has been charged with murder or robbery, for example. While such terms clearly connote some meaning to the layman, this meaning does not always embrace the basic legal elements of the crime. If this were not the case, there would be no need for instructions to a jury on such points, for certainly, an average defendant cannot be *403presumed to understand more than an average juror. Thus, for an examination to demonstrate a defendant’s understanding of the charge, the record must disclose that the elements of the crime or crimes charged were outlined in understandable terms.”

¶6The colloquy in the instant case simply does not comport with the mandate of Ingram-. “Mr. Kulp has been charged as follows, your Honor, he has been charged with on or about, ... on the 1st of March, 1974, with ‘1st Count: Delivery of Controlled Substance: feloniously manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance, to-wit, a substance containing Tetrahydrdcannabinols; 2nd Count: Possession of Controlled substance: Unlawfully have in his possession a controlled substance, to-wit, a substance containing Tetrahydrocannabinols; 3rd Count: Conspiracy: Agree with another to engage in conduct with [sic] constitutes a crime or an attempt or solicitation to commit a crime; Co-conspirator — a white female known as Carol Reynolds.”

“By the Court to Defendant:

“Q. How old are you, Sir?

“A. 24.

“Q. Where do you reside?

“A. I reside at 89 Deerfield Drive, Pottsville, Penna.

“Q. Were you going to school here in Lycoming County?

“A. No, Sir, I was working for PennDot as a Draftsman.

“Q. Have you ever been in criminal trouble before?

“A. No, Sir.

“Q. Mr. Felix has advised you of all your rights?

“A. Yes, Sir.

“Q. You understand what you are charged with?

“A. Yes, Sir.

“Q. You understand what the sentence could be?

“A. Yes.

*404“Q. You realize if you do not plead guilty you could have trial by Jury or the Court without a Jury?

“A. Yes.

“Q. You would be presumed innocent until proven guilty beyond a reasonable doubt?

“A. Yes.

“Q. That your accusers would have to face you and testify against you and be subject to cross-examination ?

“A. Yes.

“Q. Why do you want to plead guilty?

“A. Because I realize I did wrong.

“Q. What did you do?

“A. I sold some marijuana to two Undercover Agents.

“Q. On one occasion or more than one?

“A. One.

“Q. What amount and how much did you receive?

“A. I received $20.00 and it was an ounce.

“Q. The Conspiracy of the charge?

“A. Carol had to deliver it to me at the gas station. I had it at her house and she brought it to the gas station where I was working.

“Q. I will accept the plea.”

¶7Appellant’s plea was entered subsequent to the decision in Ingram. And yet as often as I review the colloquy in the instant case, I fail to find where “the record . . . disclose [d] that the elements of the crime or crimes charged were outlined in understandable terms.” That appellant stated that his attorney informed him, de hors the record, of his rights is irrelevant. The thrust of Ingramis to guarantee an accused full advisement of his or her rights “while simultaneously facilitating appellate review,” 455 Pa. at 205, 316 A. 2d at 81.

¶8In addition to the court’s failure to conform with the specific mandate of Ingram, appellant contends that the sentencing court relied on unproven information in deter*405mining appellant’s sentence. During the course of the August 26, 1974 sentencing hearing, the following discussion occurred:

“[Defense counsel] : . . . [N]eedless to say it was a stupid thing to do, and I think he realizes that certainly at this particular point, but I think even more significant is the fact there is no reason, I believe, to doubt that the sale took place pretty, as such took place pretty much as Mr. Kulp described it.

“By the Court: This particular sale did, but he was dealing in traffic, which I must keep in mind.

“ [By defense counsel] : I don’t think there is any indication of that.

“By the Court: Except he did make a sale and there is no indication it is the only sale he ever made. . . .

“[By the District Attorney] : The Commonwealth would point out several factors, one, that the Defendant made the sale at this gas station, which is a major, at this, during this period of time happened to be a major area of drug distribution in the City.

“By the Court to Defendant: . . . The Court might state that I had two or three last week, sales from the same station . . .”

¶9In United States v. Tucker, 404 U.S. 443 (1972), the United States Supreme Court held that because the sentencing judge considered three prior felony convictions that were subsequently overruled, the petitioner was entitled to reconsideration of his sentence. In the instant case, the sentencing court considered offenses for which appellant was not indicted, that may not have occurred, and which may not have involved appellant. Such egregious disregard for due process cannot be tolerated in a fair system.

¶10Thus I would remand for retrial.

¶11Spaeth, J., joins in this dissenting opinion.