A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

A panel of the Superior Court of Pennsylvania has issued a decision on the matter of COMMONWEALTH of Pennsylvania v. Ruben PARDO, Appellant, 2011 WL 6157028, 2011 PA Super 266, No. 2332 EDA 2010 (Dec. 13, 2011). This was an appeal from a Judgment of Sentence of the Court of Common Pleas of Pike County, Criminal Division, No. CP–52–CR–0000347–2009. The case was heard before Judges SHOGAN, LAZARUS, and PLATT. Judge Lazarus wrote the Opinion for the Panel.

Pardo appealed from a judgment of sentence after entering an open guilty plea to two counts of delivery of a controlled substance. The charges stemmed from two drug buys that occurred among Pardo, his cohorts and an undercover Pike County Police Officer. Pardo signed a written guilty plea colloquy. The introductory paragraph of that colloquy, detailing his agreement with the Commonwealth, stated that “The Defendant, by entering into this plea agreement, agrees that he MAY NOT withdraw this plea of guilty, unless the sentencing Court does not accept this plea agreement.” The lower court sentenced Pardo to an aggregate term of imprisonment of 5 years and nine months to 15 years.

At his sentencing, the trial court determined that Pardo was not eligible to participate in the Recidivism Risk Reduction Incentive program. Pursuant to 61 Pa.C.S. § 4505(c), offenders eligible for the RRRI program are sentenced to the minimum and maximum sentences under 42 Pa.C.S. § 9752, and then receive the RRRI minimum sentence, which constitutes three-fourths of a minimum sentence of three years or less, or five-sixths of a minimum sentence of more than three years. After the defendant serves the RRRI minimum sentence, the Pennsylvania Board of Probation and Parole assesses the defendant’s progress in RRRI programs, along with other factors, and determines whether the defendant shall be paroled. 61 Pa.C.S. § 4506. A trial court is required, by statute, to determine if a defendant is eligible for an RRRI minimum sentence. See 42 Pa.C.S. § 9756(b.1). The Court noted that a defendant who participates in RRRI could potentially receive 16.6%–25% less of his ordered sentence.

Pardo asserted that he was induced to plead guilty when his counsel advised him that he would be eligible to participate in this RRRI program. Pardo’s plea agreement and oral plea colloquy never discussed this sentencing option. Pardo raised this as one of the reasons he sought to withdraw his plea before he was sentenced. Pardo also asserted his innocence.

In Commonwealth Katonka, 2011 PA Super 223 (Pa . Super.2011) (en banc), the Court held that the mere articulation of innocence is a fair and just reason for withdrawal of a guilty plea. In this case, Pardo did state in his pro se, pre-sentence motion to withdraw his guilty plea that he was not guilty of all the charges. Pardo also acknowledged at his guilty plea withdrawal hearing that he was asserting his factual innocence of the charges. Pardo also sought to withdraw his guilty plea based on the fact that counsel told him he would be RRRI eligible at the time he entered his plea. The Court had previously held that when a defendant challenges a trial court’s disqualification of his entry into the RRRI program, the issue is one of legality of the sentence and is nonwaivable. Commonwealth v. Main, 6 A.3d 1026 (Pa.Super.2010). Here, despite the waiver provision in Pardo’s plea agreement, both the written agreement and oral colloquy made no mention of RRRI.

Based on his assertion of innocence and that counsel told him he would be RRRI eligible, the Superior Court found that Pardo offered a fair and just reason to withdraw his guilty plea prior to sentencing. The fact that Pardo signed a waiver indicating that he would not be permitted to withdraw his plea if the court accepted the plea agreement did not change the outcome. Such a waiver provision, which could prevent a defendant from the right to withdraw his plea prior to sentencing, is contrary to the line of cases emphasizing the liberal presentence plea withdrawal standard.

Judge Lazarus ruled that because Pardo had moved to withdraw his guilty plea prior to sentencing and had a fair and just reason for doing so, the trial court abused its discretion when it denied his motion to withdraw based upon the premise that he waived any such right in his written plea agreement. The following is the court’s holding:

Today we hold that it is an abuse of discretion by the trial court to find that a defendant has waived his right to withdraw a guilty plea prior to sentencing where the defendant enters an open plea with regard to sentence, asserts his innocence, and there is no alleged prejudice to the Commonwealth if the plea were to be withdrawn. We further hold that the trial court may not curtail a defendant’s ability to withdraw his guilty plea via a boilerplate statement of waiver in a written guilty plea colloquy. We believe this holding is consistent with the dictates of Pennsylvania Rules of Criminal Procedure 590 and 591 and our Supreme Court’s liberal standard of granting pre-sentence requests to withdraw guilty pleas. Accordingly, we reverse and remand for the withdrawal of Pardo’s guilty plea so that he may proceed to trial.

Defense counsel was Robert Reno, Esquire.

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