Commonwealth v. Schultz

HOFFMAN, Judge:

Appellant contends that his guilty plea colloquy was defective in not apprising him of all the elements of robbery. We agree and, accordingly, reverse the judgment of sentence, permit appellant to withdraw his plea, and grant a new trial.

On July 22, 1978, appellant entered an Allegheny County grocery store and handed the cashier a note demanding money. During the ensuing struggle and flight, appellant’s gun discharged several times, wounding a bystander in the arm. Appellant was charged with robbery, recklessly endangering another person and three weapons offenses. He pled guilty to robbery and recklessly endangering in exchange for the Commonwealth’s dropping the weapons charges. After accepting the pleas, the lower court suspended sentence on recklessly endangering,¹ but sentenced appellant to ten-to-twenty years imprisonment for robbery. In a subsequent Post Conviction Hearing Act petition, appellant alleged, inter alia, that his counsel had been ineffective in failing to perfect his appeal. The lower court agreed and allowed appellant to file post-verdict motions nunc pro tunc. In those motions appellant petitioned to withdraw his guilty plea alleging the colloquy had been defective. The lower court denied relief, prompting this appeal.

Appellant contends that his guilty plea colloquy was defective and thus his plea not understanding^ tendered because he was not informed of all the elements of robbery. Before a court may accept a plea of guilty, it must determine in an on-the-record colloquy that the plea is being voluntarily and understanding^ tendered. Pa.R.Crim.P. 319(a); Commonwealth v. Belgrave, 445 Pa. 311, 285 A.2d 448 (1971). “[F]or 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.” Commonwealth v. Ingram, 455 Pa. 198, 203-04, 316 A.2d 77, 80 (1974). Accord, Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976). “The failure to outline the nature of the offense to [a defendant] on the record destroy[s] the knowing and intelligent nature of [his] guilty pleas [and] constitute^] a manifest injustice which mandate[s] that [the defendant] be permitted to withdraw his pleas of guilty.” Commonwealth v. Copper, 273 Pa.Superior Ct. 393, 397, 417 A.2d 706, 708 (1980). During the present colloquy, appellant was instructed that

the government is charging at CC7804611 the crime of robbery. The government is alleging that on or about July 22 of 1978 you entered the A & P store and put store employees in threat of immediate serious bodily harm at the A & P store in the South Hills Village. Do you understand that that is a felony of the first degree and if found guilty you could receive a sentence of up to ten to twenty years on that.

(N.T. April 15, 1980 at 3-4). The crime outlined to appellant in the colloquy was not robbery but rather recklessly endangering another person.² “A person is guilty of robbery if, in the course of committing a theft, he ... threatens another with or intentionally puts him in fear of immediate serious bodily injury.” 18 Pa.C.S.A. § 3701(a)(1)(h). (Emphasis added). Appellant was never informed that theft or attempted theft is a necessary element of the crime, and, thus, the court could not determine whether appellant knowingly and intelligently entered the plea.³ Accordingly, we must reverse the judgment of sentence and permit appellant to withdraw his guilty plea on the robbery charge.

Order reversed and new trial granted.

JOHNSON, J., files a dissenting opinion.

1 . Appellant has not challenged his guilty plea to recklessly endangering another person.

2 . Contrary to the dissent, we hardly consider informing a defendant that theft is an element of robbery "amounts to a short law school course on the nature of the charges he faces.” Dissenting Opinion at 669.

3 . The Commonwealth cites Commonwealth v. McDonald, 285 Pa.Superior Ct. 534, 428 A.2d 174 (1981) for the proposition that a defendant’s prior experience with the criminal system can cure a defective colloquy. In McDonald, however, this Court specifically declined to address that contention. Moreover, the colloquy requirements of Pa.R.Crim.P. 319(a) and Commonwealth v. Ingram, supra, are minimal standards. “Failure to satisfy these minimal requirements will result in reversal.” Commonwealth v. Dilbeck, 466 Pa. 543, 547, 353 A.2d 824, 827 (1976). Accord, Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977).

The dissent believes the present case controlled by our Supreme Court’s recent decision in Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). Shaffer, however, did not "abolish the requirement laid down in Ingram that the elements of a crime must be explained on the record to the defendant prior to the acceptance of the guilty plea.” Id., 498 Pa. at 353-354, 446 A.2d at 597 (emphasis added). Rather, it held that under its very limited circumstances, when the defendant chose to plead guilty only after the Commonwealth had presented its entire case, he had been adequately apprised of the elements of the crime to satisfy Ingram. See Commonwealth v. Thompson, 302 Pa.Superior Ct. 19, 36, 448 A.2d 74, 82 (1982) (SPAETH, J. dissenting). This case lacks the special circumstances of Shaffer, and thus we are satisfied that it is controlled by Ingram and its progeny. Appellant contends that he is not guilty of and never intended to plead guilty to robbery because no theft was actually committed. Although appellant’s belief that a completed theft is an essential element of robbery is erroneous, it does indicate his misunderstanding of the crime he purportedly pled guilty to. By failing to follow the requirements of Ingram, the lower court failed to ensure that appellant knew the charges to which he was pleading guilty and thus it cannot be said that the plea was voluntarily and understandingly tendered.