Commonwealth v. Clark , 354 Pa. Super. 366 ( 1986 )

WIEAND, Judge:

Elmer Wilson Clark, on August 13, 1981, entered pleas of guilty to forgery, criminal attempt to cash a forged check and escape. He was sentenced to serve a term of imprisonment for not less than six years nor more than fourteen years. On January 19, 1983, Clark filed a P.C.H.A. petition in which he alleged that he had been denied his right of allocution. The petition was twice amended to include averments (1) that the sentencing court had failed to state adequate reasons for the sentence; (2) that the guilty plea court had failed to explain the elements of the crime of escape; and (3) that prior counsel had been ineffective for failing to raise these issues. Counsel was appointed to represent Clark, but the P.C.H.A. petition was denied without hearing. This appeal followed. We affirm.

The allocution issue was lacking in merit and did not require an evidentiary hearing. At sentencing, the court specifically asked Clark, “Is there anything else to be said?” to which Clark replied, “No, sir.” This constituted full compliance with Pa.R.Crim.P. 1405(a). We have also examined the reasons for the sentence which the court imposed and find them adequate. Counsel was not ineffective for failing to pursue this issue in a motion to modify sentence.¹

It is correct, of course, that “a guilty plea is valid only if the defendant understands the nature of the charges brought against him.” Commonwealth v. Campbell, 309 Pa.Super. 214, 218, 455 A.2d 126, 128 (1983). However,

an esoteric explanation of the elements of the crime is not necessarily a prerequisite to constitutional validity of a guilty plea in all circumstances. The “true constitutional imperative is that the defendant receive ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ ” [Commonwealth v. Shaffer, 498 Pa. 342, 350, 446 A.2d 591, 595 (1982)], quoting Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108, 114 (1976). Whether notice has been adequately imparted may be determined from the totality of the circumstances attendant upon the plea, Shaffer [446 A.2d] at 595, see also Commonwealth v. Morales, 452 Pa. 53, 305 A.2d 11 (1973), Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968).

Commonwealth v. Martinez, 499 Pa. 417, 420, 453 A.2d 940, 942 (1982).

In the instant case, the guilty plea colloquy with respect to escape was as follows:

Q. And in the third case, No. 257 Criminal 1981, in which you are charged with Escape, a Felony of the third degree; did you Escape from the Somerset County Jail while you were imprisoned on that charge?

A. Yes, sir.

Q. Tell me how you escaped.

A. Well, I climbed up over the fense [sic] and down over the wall.

Q. From the roof?

A. Yes, sir.

Q. Did you have any authority to leave?

A. No, sir.

Q. Were you imprisoned there on this charge?

A. Yes, sir.

Q. Well, that is the other check charges.

A. Yes.

Q. Well, that’s a Felony of the third degree, and can also carry with it a possible seven year prison sentence or fine or both. (N.T. 8/13/81, at 6-7).

The foregoing colloquy was adequate to impart to appellant that he was entering a plea of guilty to an escape from the Somerset County Jail because he had left without authority while subject to imprisonment on a charge of forgery. He had previously been told by the court, moreover, that the charge of forgery was a felony. In view of these instructions there were no additional elements of the crime of escape which remained to be explained. See: 18 Pa.C.S. § 5121. Moreover, the elements of the offense were straightforward and did not require further explanation in order to make them understandable. We conclude, therefore, that the colloquy accompanying appellant’s plea of guilty to escape was adequate. A challenge to the validity of the guilty plea on this basis would have been meritless. Counsel was not ineffective for failing to make such a challenge.

Clark argues for the first time in this appeal that the trial court lacked jurisdiction to sentence him for escape because an information charging that offense had not been filed against him.² A review of the record discloses that a criminal complaint had been filed by the Sheriff of Somerset County in which the charge was escape in violation of 18 Pa.C.S. § 5121. Specifically, the complaint averred that on July 28, 1981, at 9:45 p.m., appellant “did unlawfully remove himself from official detention in the Somerset County Jail where he had been committed in lieu of bond on charge of Forgery, a felony.” On August 13, 1981, appellant appeared before the trial court for the purpose of entering a plea of guilty to informations charging him with forgery and criminal attempt. At this hearing, appellant indicated his desire to plead guilty also to the escape charge so that he could be sentenced on all pending charges at the same time. The trial court conducted a full guilty plea colloquy and accepted appellant’s plea of guilty to forgery, criminal attempt and escape.

Appellant’s present argument is that a trial court lacks jurisdiction to accept a guilty plea to a crime not charged by information or indictment. We disagree. To invoke the jurisdiction of the court to accept a plea of guilty for a criminal offense,

it is necessary that the Commonwealth confront the defendant with a formal and specific accusation of the crimes charged. This accusation enables the defendant to prepare any defenses available to him, and to protect himself against further prosecution for the same cause____

Commonwealth v. Little, 455 Pa. 163, 168-169, 314 A.2d 270, 273 (1974). In Little, the Supreme Court held that the requirement of “a formal and specific accusation” had been satisfied by an indictment returned by the grand jury and that the absence of a criminal complaint did not affect the subject-matter jurisdiction of the lower court.

Four years later, in Commonwealth v. Diaz, 477 Pa. 122, 383 A.2d 852 (1978), the Supreme Court again considered the necessity for “a formal and specific accusation” of the crimes charged. There, a defendant who had been charged with attempted rape, kidnapping, indecent assault and simple assault, waived a preliminary hearing, waived presentment to the grand jury, waived formal indictment and entered a plea of guilty to attempted rape. The remaining charges were nolle prossed, and the defendant was sentenced to probation for five years. Thereafter, he was indicted on the same charges. He moved to dismiss the charges, contending that his constitutional right to be free of double jeopardy was being violated. The Commonwealth argued that there could be no double jeopardy violation because the trial court, without an indictment, had lacked jurisdiction to accept the defendant’s guilty plea and impose sentence upon him.

When the issue reached the Supreme Court, it held that the trial court had, in fact, had jurisdiction to accept the defendant’s plea and to impose sentence. After discussing the constitutional requirement of formal notice, the Court said:

In the case before us, [defendant] had formal notice of the charges against him. The complaint filed against [defendant] was not so broad in its allegations that the specific conduct allegedly committed by [defendant] was in doubt. The complaint was specific as to the date of the crime, identified the victim of the crime, and specifically described the acts alleged to have been done by [defendant] during the attempted rape. Moreover, the specific facts underlying the charge of attempted rape were formally placed on the record in the presence of the [defendant] and [defendant’s] counsel____

We conclude that the requirement of Little, that the accused be given a formal notice of the charges has been satisfied in this case. There is no question concerning the specific charges to which the appellant pleaded guilty and for which he was sentenced on April 13, 1974. The trial court was therefore not divested of subject matter jurisdiction by any lack of notice to the defendant of the crimes of which he stood accused.

Commonwealth v. Diaz, supra, 477 Pa. at 126-127, 383 A.2d at 854-855.

Appellant’s reliance on Commonwealth v. Komatowski, 347 Pa. 445, 32 A.2d 905 (1943) is misplaced. There, the defendant had been convicted by a jury “of a crime utterly unknown to the law.” Moreover, the Court observed by way of dictum, the verdict of the jury had not been responsive to the charge contained in the indictment. Under these circumstances, the Court held, the defendant’s motion in arrest of judgment should have been granted. Instead, the record showed, the trial court had sentenced the defendant for another crime of which he had not been convicted by the jury. This, the Supreme Court held, was error. This decision clearly is not determinative of a trial court’s jurisdiction to accept a plea of guilty, at defendant’s express request, to a charge then pending but for which an information has not yet been filed. Moreover, even if the dictum in Komatowski can possibly be construed as questioning a court’s jurisdiction to accept a plea of guilty and impose a sentence to such a pending charge, we would nevertheless be required to follow Diaz. The holding of Diaz is later in time than the dictum in Komatowski and represents the most recent word of the Supreme Court on this issue.

In the instant case, as in Diaz, a criminal action for escape had been commenced against the defendant by the filing of a criminal complaint. That complaint contained averments which established with specificity the date and time of the escape, the prison facility where appellant had been confined at the time of his escape, and the names of the persons who had escaped with appellant. In order to enter a plea of guilty to this charge and dispose of all pending charges at one and the same time, appellant expressly waived the necessity for the prior filing of an information charging escape. During the guilty plea colloquy, he told the court exactly how the offense had been committed. Thus, appellant clearly had notice of and understood the charge of escape to which he was entering a plea of guilty. He had a full comprehension of the nature of the act for which he was being sentenced. This was “substantially equivalent” to an information and was sufficient to vest jurisdiction in the trial court to accept the guilty plea and impose sentence.

The order dismissing appellant’s P.C.H.A. petition is affirmed.

LIPEZ, J., files a dissenting Opinion.

1 . Appellant also contends that there were reasons why the sentencing court would have granted his request for modification of the sentence if they had been presented to the court. There is no merit in this contention. The reasons now suggested by appellant were trivial and would not have warranted a reduced sentence.

2 . Although this issue was not previously raised, it has not been waived. "[A]n objection to lack of subject-matter jurisdiction can never be waived." Commonwealth v. Little, 455 Pa. 163, 168, 314 A.2d 270, 272 (1974).