Commonwealth v. Ortiz
Commonwealth v. Ortiz
Opinion of the Court
This appeal is from an order denying appellant’s presentence petition to withdraw a guilty plea. We must reverse judgment of sentence and remand for further proceedings.
On December 7, 1980, appellant was arrested on charges of robbery, simple assault, aggravated assault, theft, receiving stolen property and criminal conspiracy. On November 9, 1981, appellant tendered a guilty plea to a single charge
Rule 320 of the Pennsylvania Rules of Criminal Procedure provides that “[a]t any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.” The lower court correctly states the law which has developed under this rule as follows: “A defendant does not have an absolute right, even before sentencing, to withdraw a guilty plea once tendered and accepted by the court. He must have a ‘fair and just’ reason. Commonwealth v. Mosley, 283 Pa.Super. 28, 423 A.2d 427 (1980).” Slip op. at 5. On the other hand, once a “fair and just” reason has been made out, withdrawal should be liberally permitted, unless the Commonwealth has been substantially prejudiced. Com
Here, appellant has supported his request to withdraw his guilty plea by asserting his innocence.
Accordingly, judgment of sentence is reversed and the record is remanded with instructions to permit appellant to withdraw his guilty plea. Jurisdiction is relinquished.
. 18 Pa.C.S. § 3701(a)(l)(i).
. The opinion of the lower court indicates that appellant "did not deny that he had committed the robbery to which he had pleaded guilty." Slip op. at 5. However, appellant’s petition clearly states at paragraph five that “the Petitioner alleges his innocence____” Appellant's petition to withdraw was verified by the sworn affidavit of his attorney in accord with Pa.R.Crim.P. 9030. At the hearing on appellant's petition to withdraw there was no evidence offered to show that he did not assert his innocence. Under these circumstances, we hold that appellant has sufficiently asserted his innocence.
. Appellant specifically waived any rights he might have under Pa.R.Crim.P. 1100, Petition to Withdraw Guilty Plea ¶ 6(c); and other charges were only to be dismissed later, when sentence was imposed. N.T. 11/9/81 at 11.
Dissenting Opinion
dissenting:
The majority after careful study concludes that the trial court abused its discretion in refusing to allow appellant to withdraw his guilty plea based upon a finding that appellant had “supported his request to withdraw his guilty plea by asserting his innocence.” Majority Opinion at pg. 122. I, however, do not find “fair and just” reason to permit appellant to withdraw his plea and, therefore, would affirm the judgment of sentence.
THE COURT: Mr. Ortiz, your counsel is here, and I just wanted to reiterate. This morning you entered a guilty plea and I gave you a colloquy. I’m not certain that I mentioned this morning or asked you whether or not the guilty plea was brought about by anybody threatening or forcing you or persuading you to plead guilty by any other means than the plea bargain.
THE DEFENDANT: I pleaded guilty on my own.
THE COURT: On your own?
THE DEFENDANT: Yes.
THE COURT: And therefore, the guilty plea you entered you’re saying was of your own free will?
THE DEFENDANT: Yes.
THE COURT: Nobody promised you or threatened you? THE DEFENDANT: No.
MR. CAMMARANO: Thank you, Your Honor.
THE COURT: Thank you.
Counsel for appellant, more than four months later, on March 18, 1982, filed a petition seeking leave for appellant
I can discern no abuse of discretion on the part of the learned trial court judge who concluded that appellant had failed to establish a “fair and just” reason for withdrawal of his guilty plea. I would, therefore, affirm the judgment of sentence.
. Appellant, while under oath, provided the following assurances to the court at the time of his guilty plea:
THE COURT: [d]o you agree to the plea bargain as it has been spelled out?
THE DEFENDANT: Yes.
THE COURT: Now, Mr. Ortiz, have you had any alcoholic beverages to drink or taken any medicine or drugs within the last 48 hours? THE DEFENDANT: No.
THE COURT: Have you drunk anything? Understand what I just asked you?
THE DEFENDANT: Yes.
THE COURT: And you said no?
THE DEFENDANT: Um-hum.
THE COURT: Have you ever been treated for any mental or emotional illness.
THE DEFENDANT: Yes.
THE COURT: You have?
THE DEFENDANT: (nodding head vertically)
THE COURT: Could you tell me what the nature of the treatment was and when it occurred?
THE DEFENDANT: Mentally ill up in prison.
THE COURT: In prison?
THE DEFENDANT: Yes. Six months ago.
THE COURT: Six months ago? Are you taking any medication at the present time?
THE DEFENDANT: No, sir.
THE COURT: Does this problem that you had six months ago effect your ability to understand what I’m saying to you now?
THE DEFENDANT: No, sir.
MR. CAMMARANO: Your Honor, if I might add, I’ve had extensive dealings with Mr. Ortiz, and I’m quite convinced he understands what’s going on at this point.
THE COURT: Is there any question about his legal capacity at the time this incident occurred?
MR. CAMMARANO: None, Your Honor.
THE COURT: All right. Mr. Ortiz, how old are you?
THE DEFENDANT: Twenty-five.
THE COURT: How far did you go in school?
THE DEFENDANT: Sophomore.
THE COURT: Where did you go?
THE DEFENDANT: John Jay, Brooklyn, New York.
*123 THE COURT: Have you had any formal education since your sophomore year in high school?
THE DEFENDANT: Yes.
THE COURT: What was that?
THE DEFENDANT: At RACC. I was attending there.
THE COURT: What courses did you take at RACC?
THE DEFENDANT: G.E.D. courses and business accounting.
THE COURT: Did you get your G.E.D. degree?
THE DEFENDANT: No.
THE COURT: Have you been employed? Did you have a job?
THE DEFENDANT: Yes.
THE COURT: What kind of work did you do?
THE DEFENDANT: I did all kinds of jobs. All kind of work, sir.
THE COURT: Manual labor jobs?
THE DEFENDANT: Yes, my last job was supervisor.
THE COURT: Where was it?
THE DEFENDANT: City Hall.
THE COURT: Now, Mr. Ortiz, did you have any questions about anything I either asked you or told you up to this time?
THE DEFENDANT: No, sir.
THE COURT: You still desire to plead guilty to the charge of robbery?
THE DEFENDANT: Yes, sir.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. George ORTIZ, Appellant
- Cited By
- 13 cases
- Status
- Published