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Commonwealth v. Berry6/13/2005
nce the total was one to two years. We do not know when he was sent to the state prison. All we know from the record is that when Berry filed his PCRA petition on January 8, 2003, he still did not have counsel and was asking for an attorney to represent him.
26 To sum up what occurred in this case: a defendant waives his right to counsel through a defective colloquy; unrepresented thereafter, he is told by the Commonwealth that they would recommend concurrent sentences and told by the judge that if the judge thought the sentences would have to be consecutive, the defendant could withdraw his guilty plea; and the judge then sentences him to consecutive time, and the pro se defendant is not told he can withdraw his guilty plea. I believe that the egregious circumstances of this case warrant relief.
27 Finally, I believe that there is an additional point that merits emphasis, particularly in light of the circumstances of this case and, more generally, contemporary judicial practice. If a judge makes a mistake in the colloquy, it should not be the defendant who suffers after being misled by the judicial mistake. The trial judge stated at the PCRA hearing and in his Rule 1925(a) opinion that there was no plea agreement. However, when the trial judge declared this at the PCRA hearing, Berry's counsel stated that Berry would testify that he was informed both at the preliminary hearing and in later conversations with the District Attorney's office that there was a plea agreement. Despite this proffer, the trial judge refused to take testimony. At a minimum, therefore, this case should be remanded to determine if Berry was told he had a specific plea agreement.
28 There are a variety of options for plea agreements, as this Court has recognized:
In an open plea agreement, there is an agreement as to the charges to be brought, but no agreement at all to restrict the prosecution's right to seek the maximum sentences applicable to those charges. At the other end of the negotiated plea agreement continuum, a plea agreement may specify not only the charges to be brought, but also the specific penalties to be imposed. In between these extremes there are various options, including an agreement to make no recommendation or, as here, an agreement to make a favorable but non-binding recommendation. So long as the limits of the agreement are plainly set forth on the record, understood and agreed to by the parties, and approved by the trial court, we find no impediment in [Commonwealth v. Bennett, 517 A.2d 1248 (Pa. 1986)] or Pa.R.Crim.P. 319(b) [now Rule 590(B)] to the offer, acceptance, performance or enforcement of such plea agreements. Commonwealth v. Porreca, 567 A.2d 1044, 1047 (Pa. Super. 1989), rev'd on other grounds, 595 A.2d 23 (Pa. 1991).
29 Because of the variety of options, as in the instant case, lawyers and judges are often confused as to the exact intentions of the plea negotiations. Because the defendant is a layperson giving up his or her constitutional right to trial, it is imperative that the trial judge make sure that the exact terms of the negotiations are crystal clear and stated on the record. The defendant should not have to guess.
30 Unfortunately, guilty plea colloquies are often deficient in this and other respects. I certainly recognize the pressure on trial judges to move through cases quickly to alleviate crowded dockets. At the same time, it only takes a few minutes to ensure that the colloquy is complete and effective. Particularly when a state sentence is involved where a defendant might spend years in custody, not to speak of the cost of tens of thousands of dollars to taxpayers, it is not asking too much to require tha
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