Commonwealth v. Mascitti

HOFFMAN, Judge,

concurring and dissenting:

I concur in the majority’s finding that the lower court properly denied appellant’s motion to quash. I dissent, however, from the determination that the lower court properly vacated, sua sponte, appellant’s plea of nolo contendere. Accordingly, I would reverse the judgment of sentence, and remand the case to the trial court for reinstatement of appellant’s nolo contendere plea and resentencing. Because I would order the lower court to reinstate the plea, I would find it unnecessary to address appellant’s final contention.

Appellant contends that the lower court erred in vacating his previously-accepted plea of nolo contendere because it based its order on appellant's failure to admit his involvement in the offense. He argues that even though a plea of *469 nolo contendere subjects him to sentencing as «/he pleaded guilty, such a plea “does not require an admission of guilt by the defendant.” For the reasons that follow, I agree and would find that the lower court erred in imposing a requirement that an appellant must admit to the existence of a factual basis for the crimes charged to be entitled to preserve a plea of nolo contendere. Accordingly, I would hold that the lower court abused its discretion in vacating the plea.

On January 15, 1985, appellant appeared before the Honorable P. Richard Thomas, President Judge of the Court of Common Pleas of Crawford County. Pursuant to a plea arrangement, appellant entered a plea of nolo contendere to charges of statutory rape and corruption of minors. When asked by the court whether he knew what a plea of nolo contendere meant, appellant replied: “It means that I am not admitting the charges, but I don’t have a defense against them.” N.T. January 15, 1985 at 9. Appellant’s plea was accepted, and sentencing was deferred pending completion of a pre-sentence report.

On February 5, 1985, appellant appeared before the Honorable Robert L. Walker for sentencing. After reviewing the pre-sentence report and questioning appellant, the sentencing court determined that appellant’s plea had been improvidently accepted by President Judge Thomas. The court then issued an order, sua sponte, striking the nolo contendere plea and scheduling the case for trial.

In its opinion, the sentencing court made plain that the only reason it vacated the nolo contendere plea was because appellant refused to admit to a factual basis for the crimes charged. The court noted that, “a review of the pre-sentence investigation indicated that defendant had told the investigator that he had had no sexual contact whatever with the victim.” Lower Court Opinion at 2. The court reasoned that this denial disentitled appellant to the benefit of the plea:

We were quite frankly reluctant to sentence someone to prison who denied any involvement with the crime____ *470 Since the defendant refused to either admit or deny his involvement in the offense which he was free to do, we vacated his plea, refused to impose sentence and permitted him to stand trial.

... [W]e still feel a great reluctance to sentence a defendant who flat out denies his involvement.

Id. In requiring that appellant admit to a factual basis, the sentencing court treated the nolo contendere plea as if it were equivalent to a guilty plea.

The majority, without discussion, holds that the sentencing court did not abuse its discretion in vacating the plea agreement. The majority thus implicitly approves of the court’s determination that a defendant must admit to a factual basis for the crime charged in order to preserve a nolo contendere plea. I disagree with the conclusion that the court can require a defendant to provide such a factual basis.

A plea of nolo contendere is one “by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty.” North Carolina v. Alford, 400 U.S. 25, 35 , 91 S.Ct. 160, 166 , 27 L.Ed.2d 162 (1970) (footnote omitted); Commonwealth v. Boyd, 221 Pa.Superior Ct. 371, 373-74, 292 A.2d 434, 435 (1972) (quoting Hudson v. United States, 272 U.S. 451 , 47 S.Ct. 127 , 71 L.Ed. 347 (1926)). See also 2 W. LaFave & J. Israel, Criminal Procedure § 20.4, at 636 (1984) (plea LaFave & J. Israel, Criminal Procedure § 20.4, at 636 (1984) (plea of nolo contendere is device by which defendant may assert that he or she does not want to contest issue of guilt or innocence). “Throughout its history, that is, the plea of nolo contendere has been viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency.” North Carolina v. Alford, supra at 35 n. 8, 91 S.Ct. at 166 n. 8. See also Commonwealth ex rel. Warner v. Warner, 156 Pa.Superior Ct. 465, 466, 40 A.2d 886, 887 (1945) (plea of nolo contendere is implied confession of *471 guilt only). Such a plea may not be entered as a matter of right; the plea “must be accepted and approved by the trial judge.” Commonwealth v. Boyd, supra, 221 Pa.Superior Ct. at 373, 292 A.2d at 435 . See also Pa.R.Crim.P. 319.

Once the plea has been accepted by the trial judge, “it is not the province of the court to occupy itself with the question of guilt or innocence.” Commonwealth v. Boyd, supra, 221 Pa.Superior Ct. at 374, 292 A.2d at 435 . The effect of such a plea upon the case, however, is equivalent to that of a guilty plea. Id. See also 2 W. LaFave & J. Israel, supra § 20.4, at 637. Thus, “[cjonviction and sentence [may] follow upon it in the same manner as upon a plea of guilty — ” Commonwealth v. Smith, 151 Pa.Superior Ct. 113, 130, 30 A.2d 339, 346 (1942). Moreover, “[t]he procedures for receiving the plea are the same, the defendant may receive the same sentence, and the nolo plea is like a guilty plea in terms of its finality, its effect as a waiver of claims unrelated to the plea, and the circumstances in which withdrawal of the plea would be permitted.” 2 W. LaFave & J. Israel, supra (footnotes omitted).

Here, appellant entered a plea of nolo contendere. The colloquy between President Judge Thomas and appellant demonstrates that appellant understood precisely the nature of this plea. The court then accepted the plea. Under Pennsylvania law, the plea operated as an implied admission of guilt, see, e.g., Commonwealth ex rel. Warner v. Warner, supra, and thus subjected appellant to conviction and sentence. Commonwealth v. Smith, supra. Unlike a guilty plea, however, once appellant’s plea was accepted, the lower court could not inquire further regarding whether a factual basis existed for the plea. Commonwealth v. Boyd, supra. Accordingly, I would hold that the lower court abused its discretion in vacating the plea simply because appellant refused to admit his guilt both in the pre-sentence report and in open court.

Moreover, I note that even if Pennsylvania law permitted the court to seek to establish a factual basis for a plea of nolo contendere, I would hold that the court erred in *472 requiring the defendant himself to establish the basis by direct admission. As LaFave and Israel have noted, even in those jurisdictions that require that a factual basis be established, “the factual basis must be established other than by direct inquiry of the defendant.” 2 W. LaFave & J. Israel, supra § 20.4, at 637 n. 9. See also North Carolina v. Alford, supra at 35 n. 8, 91 S.Ct. at 166 n. 8 (under federal rules, requirement that factual basis exist applies only to guilty pleas; “it was thought desirable to permit defendants to plead nolo without making any inquiry into their actual guilt”). The rationale for the distinction is obvious: if a defendant were required to admit guilt directly, it “would nullify the benefit of the nolo plea.” 2 W. LaFave & J. Israel, supra.

For the foregoing reasons, I would reverse the judgment of sentence, and remand the case to the trial court for reinstatement of appellant’s nolo contendere plea and re-sentencing.