Guilty Plea • Withdrawal Sua Sponte • Abuse of Discretion

Commonwealth v. Herbert, PICS Case No. 14-0235 (Pa. Super. Feb. 5, 2014) Olson, J. (17 pages).

The trial court did not abuse its discretion when it withdrew sua sponte defendant’s guilty plea at sentencing based on defendant’s actions while out on bail. Sentence affirmed.

Herbert was charged with three offenses arising from the theft of $1,500 from a local bar. He entered a plea of guilty to theft by unlawful taking and agreed to cooperate in the police investigation of his co-defendant. He was subsequently arrested in North Carolina and charged with additional crimes, including murder.

On March 16, 2012, the commonwealth filed a motion to revoke Herbert’s guilty plea based on his failure to provide the cooperation required by the plea agreement and his failure to appear for sentencing. However, Pa.R.Crim.P. 591(A) provides that such a motion may only be made by the defendant or by the court sua sponte. The court chose to sua sponte revoke the guilty plea and Herbert was found guilty in a bench trial of the counts in the original criminal information and sentenced to a term of 21 to 42 months imprisonment.

Herbert contended that the trial court abused its discretion in sua sponte withdrawing his guilty plea by finding that he failed to cooperate with the police and by allegedly considering inappropriate factors. Herbert asserted that he did not have an opportunity to assist the police pursuant to the plea agreement because the agreement only obligated him to testify against his codefendant who was never charged with a crime.

Herbert also asserted that the court considered improper factors such as his failure to appear for a pre-sentence interview, his failure to appear for the sentencing hearing, and his arrest for murder in North Carolina.

Trial courts have broad discretion in deciding whether to withdraw a guilty plea sua sponte. In making such a decision, public policy permits a court to consider whether the defendant has fulfilled his or her obligations under the plea agreement, including cooperating with the pre-sentence process. However, a court should generally not consider subsequent criminal activity. Herbert failed to attend, on two separate occasions, the pre-sentence interview and failed to appear for his sentencing. Additionally, the record showed that the court did not consider his subsequent arrest when deciding to withdraw his guilty plea.

When considering whether to sua sponte withdraw a defendant’s guilty plea, a trial court may consider the sufficiency of the factual basis of the plea and the defendant’s failure to comply with his obligations under the plea agreement, including his failure to cooperate in the sentencing process.