Validity of appellate waivers and written plea agreements when erroneous advice from counsel is alleged

Commonwealth v. Pardo, 2011 PA Super 266 (12/13/11) (19 pages)

(This case can be accessed by following the links through the Pennsylvania Superior Court web site.)

The Defendant entered an open guilty plea to delivery of a controlled substance, signing a written plea agreement waiving his right to withdraw his guilty plea unless the court did not accept the plea. While the plea agreement did contain the Commonwealth’s agreement to dismiss all charges except for the two Mr. Pardo pled guilty to, it contained no representations as to his sentence or any Commonwealth promises to seek, agree to, or not oppose any given outcome. Prior to entering the plea, Pardo’s lawyer told him he would be eligible for the Recidivism Risk Reduction Program (“RRRI”). That turned out to be wrong.

Following a PSI, which augured a sentence far worse than Pardo hoped for, Pardo filed a pro se motion to withdraw the guilty plea asserting his lawyer had made several misrepresentations about the effect of the plea and the sentence he might receive. At the hearing on the motion to withdraw guilty plea, he further testified that his lawyer had only spent a few minutes with him before the plea and had not answered all of his questions, and that he was not guilty of all of the charges.  His lawyer also testified that his client did not understand the concept of an open guilty plea (!) and did not understand other aspects of his possible sentence. The sentencing court, enforcing the terms of the written plea agreement, denied the motion to withdraw the guilty plea and sentenced the defendant.

The Superior Court reversed, holding, “[I]t is an abuse of discretion by the trial court to find that a defendant waived his right to withdraw a guilty plea prior to sentencing where the defendant enters an open guilty 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regard to sentence, asserts his innocence, and there is no alleged prejudice to the Commonwealth if the plea were to be withdrawn.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 in a written plea colloquy.” Even when a defendant’s plea is knowingly, voluntarily and intelligently given, a defendant can still present a fair and just reason for the withdrawal of a guilty plea before sentencing. Pardo’s reasons for withdrawal of the guilty plea were fair and just, the Commonwealth did not assert prejudice, and therefore the conviction was vacated and remanded for trial.

Leave a Reply

Your email address will not be published. Required fields are marked *