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Commonwealth v. Berry6/13/2005
ing to accept our position. He can still impose consecutive sentences, you understand that?
Id.
38 In the instant case, not only did the trial judge fail to make it clear that the recommended sentence did not preclude him from sentencing Berry to more time without giving him the option to withdraw his plea, but the judge actually stated the opposite. Therefore, it was not permissible for the trial judge to sentence Berry to a consecutive term without affording him the opportunity to withdraw his guilty plea.
39 But again, this Court has no business discussing the merits of this unfortunate case because Berry never validly waived his right to counsel under any standard. As a result, Berry's subsequent guilty plea proceedings were a nullity, and therefore, in my view, Berry should be afforded relief --i.e., the relatively minimal relief of starting at square one -- so that justice may fairly be had.
40 For the foregoing reasons, I respectfully dissent.
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