author: BROSKY, Judge:

text:
    481 A.2d 1225
    In re Patches KERR 4-11-80, Stanley Allen Kerr, Jr. Appeal of Kathleen A. SHAFFER.
    Superior Court of Pennsylvania.
    Argued Feb. 7, 1984.
    Filed Sept. 21, 1984.

      Wesley T. Long, Greensburg, for appellant.
    James L. Liberto, Greensburg, for appellee.
    Before BROSKY, OLSZEWSKI and JOHNSON, JJ. '
   BROSKY, Judge:

This appeal is from an adjudication of dependency of two children. Appellant, the natural mother of the two minors, contends that the juvenile court was without jurisdiction over this case when it failed to hold the adjudicatory hearing within the statutorily prescribed period. We hold that the consequence of a tardy hearing is the automatic activation of the right of the child and its parents to the immediate release of the child from the state’s custody; it is not, as appellant argues, the loss of the court’s jurisdiction over the case. Order affirmed.

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The relevant procedural history is as follows.

On January 12, 1982 two children, Patches and her brother Stanley Kerr, Jr. were taken into emergency custody by a physician in a hospital emergency room. A 24-hour order was entered that same day and a 72-hour hearing begun the next day and continued until January 19. The adjudicatory hearing was initially scheduled for January 21 but was continued until January 29 because other cases were in progress on the 21st. After the hearing the juvenile court found that both children were dependent. This appeal followed.

Appellant contends that since the adjudicatory hearing was not held within the statutorily prescribed period the court was without jurisdiction to act in the case. The statute relied upon reads in relevant part:

After the petition has been filed the court shall fix a time for the hearing thereon, which, if the child is in detention or shelter care shall not be later than ten days after the filing of the petition. If the hearing is not held within such time, the child shall be immediately released from detention or shelter care.

42 Pa.C.S. § 6335(a).

Appellant argues that case law supports his interpretation of the statute. Cited in that regard is Hemenway v. Hemenway, 284 Pa.Super. 481 at 481, 426 A.2d 149 at 149 (1981) (emphasis supplied), in which the following appears.

The question before us is whether, absent a finding of dependency and full compliance with the Juvenile Act procedures, the lower court may properly award custody subject to the supervision of the County Children’s Services. We hold that it may not.

There is no doubt that there was not full compliance with the statute here. That would appear to settle the issue in appellant’s favor, but, for the following reasons, we conclude otherwise.

First, it is worth noting that in the breadth of its language quoted above, Hemenway is only obiter dicta. The facts which gave rise to the decision in Hemenway were much more extreme than those before us sub judice. In Hemenway no Juvenile Act petition was ever filed and none of that Act’s procedures were followed in any way whatsoever. Here the only significant departure from the statutory norms was the tardiness of the adjudicatory hearing.

A case more directly on point is In Interest of DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977) (Spaeth, J.). As here, appellant DelSignore argued that the court lacked jurisdiction to hold an adjudication hearing more than ten days after the filing of the petition. This Court responded to this contention as follows:

We agree with appellee that “[t]he obvious purpose of the statute is to prevent pre-hearing detention, and is apparent from the requirement of detention release if the hearing is not held within ten days.” Appellee’s Brief at 4. Here, appellant was released from detention on the tenth day after the petition was filed; thus the statute was complied with, and the harm it was designed to prevent — lengthy pre-hearing detention — was prevented.

Id., 249 Pa.Superior Ct. at 158, 375 A.2d at 807.

Since the juvenile in DelSignore was released at the expiration of the ten day period, its holding cannot be directly applied here, where the juvenile was kept after the ten day period. However, an examination of the implications of DelSignore’s holding does provide guidance.

In its interpretation of the purpose of the statute, DelSignore indicates the proper resolution of the issue before us. It is not the tardiness of the hearing, as such, which is the target of the statute. Rather, it is the prolonged pre-hearing confinement. Remedies for violations must thus be aimed at ending the confinement, not at other aspects of the case.

The statute itself confirms this view. It specifically provides that the consequence of a hearing not being held is that the juvenile will be released. The statute does not go on to provide for the court’s loss of jurisdiction should the child not be released. Nor does it logically follow that the court must lose jurisdiction for such a violation — for other means of immediate redress exist which can act to fulfill the purpose of the statutory provision.

First, the juvenile held beyond the ten day period without a hearing can petition the Court of Common Pleas for his immediate release. Should that court not release him, he would then have the right to petition this Court for an order compelling his release. Such motions receive, of course, the most immediate treatment here.

Absent an unequivocal expression from the Legislature that loss of jurisdiction follows from a violation of the statute, we are unwilling to so declare. This is particularly so in view of the fact that other avenues exist to vindicate the juvenile’s right to release.

Order affirmed.

      . Appellant also raises four other issues. After the most careful review we find them to be without merit.

      . The authority for this action is contained in 11 P.S. § 2208(a)(2).

      . The 72-hour hearing is mandated by 11 P.S. § 2208(c).

      . Other provisions, allowing for an additional ten day extension, are not applicable here.

      . See also Nemeth v. Nemeth, 289 Pa.Super. 334, 433 A.2d 94. (1981).

      . This could, of course, be also done by his parents or guardians on his behalf.

      . See Commonwealth v. Barfod, 160 Pa.Super. 59, 50 A.2d 36 (1946); Kohn v. City of Philadelphia, 156 Pa.Super. 112, 39 A.2d 531 (1944); 1 Pa.C.S. § 1928(b)(7); 3 C. Sands, Sutherland Statutes and Statutory Construction 224 (4th Ed.1974).


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    481 A.2d 1228
    COMMONWEALTH of Pennsylvania v. Ciro MIGLIORE, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted July 24, 1984.
    Filed Sept. 21, 1984.

      A. Charles Peruto, Sr., Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from an order entered by the Court of Common Pleas of Philadelphia County, revoking probation and imposing a sentence of incarceration.

The pertinent facts are as follows: In 1973, appellant shot the victim in the back, permanently paralyzing him below the waist. Appellant pled guilty before the Honorable Marvin R. Halbert to charges of aggravated assault, conspiracy, and possessing an instrument of a crime. On July 30, 1974, appellant was sentenced to ten (10) years probation on the aggravated assault bill, conditioned upon payment to the victim of $30,000 restitution. This amount was to be paid in installments of $3000 per year. Concurrent sentences of two (2) years probation were issued on each of the remaining convictions. An initial $2000 payment was made within ninety (90) days of sentencing and a few other payments followed. However, once the figure of $6000 was reached, regular payments ceased. Following the scheduling and continuance of several violation of probation hearings, a single payment of $7800 was made in May of 1981. Despite repeated demands, no further payments have been forthcoming.

On September 7, 1983, a violation of probation hearing was held in regard to the non-payment of restitution. At the conclusion of the hearing, probation was revoked and appellant was ordered to spend eight (8) to twenty-three (23) months in the county prison. Thereafter, restitution payments were to resume.

On appeal, appellant asserts that his present incarceration is constitutionally forbidden because of the recent decision of the United States Supreme Court in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). At a minimum, appellant argues that the court below was obligated to consider, as alternatives to imprisonment, other methods of punishment. Specifically, the holding of Bearden states the following:

We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment. (Footnote omitted).

Bearden, supra, 461 U.S. at 672, 103 S.Ct. at 2073, 76 L.Ed.2d at 233. This holding has been interpreted by another panel of this court as requiring a trial court to inquire into the reasons for a defendant’s failure to pay and to make findings pertaining to the willfulness of a party’s omission. Commonwealth v. Dorsey, 328 Pa.Super. 241, 476 A.2d 1308, 1312 (1984).

Turning to the record, it is clear that the trial court did in fact inquire into the reasons for appellant’s failure to pay. Appellant, through his counsel, stated that he was no longer able to work due to a physical disability, and that he had already obtained a second mortgage on his home and was unable to obtain further loans. However, the record also revealed that since the original order of probation was made in 1974, appellant had sold his residence for $70,000, netting approximately $32,000 on the sale. Appellant and his wife then took $25,000 of the proceeds and used it for a down payment on a new home in New Jersey. During this same period, appellant also sold his liquor license for a reported sum of $11,000. In addition, while the record did reveal that appellant was currently unemployed due to a heart condition, such disability did not occur until 1980, at which point appellant was already considerably in arrears.

Based on this evidence, the trial judge concluded that, “It has become abundantly clear to this court that the defendant had the ability to pay restitution which was due and owing, but chose not to do so when the ability was there. Rather, he refused to pay, postponed paying, and generally flaunted this court’s order____ In the present case, this court has found that the defendant’s failure to pay when he had the ability, the capacity, and the money, was a willful failure to pay and in direct violation of this court’s order.” (Lower Court Opinion, 3-4).

Here, the trial court inquired into the reasons for appellant’s failure to pay and made specific findings of willfulness as dictated by Commonwealth v. Dorsey, supra. Having concluded that the appellant had in fact willfully refused to pay restitution, the court then revoked probation and sentenced the appellant to imprisonment, a perfectly proper result under Bearden. Moreover, once the trial court had found that appellant had willfully refused to pay, it was not under any obligation to consider alternatives to incarceration. The Bearden decision imposes such a responsibility only in those instances where a probationer “... could not pay despite sufficient bona fide efforts to acquire the resources to do so ... ” Bearden, supra, 461 U.S. at 672, 103 S.Ct. at 2073, 76 L.Ed.2d at 233.

Order affirmed.

      . 18 Pa.C.S. § 2702

      . Id. § 903

      . Id. § 907

      . The factual scenario of the case sub judice was alluded to by the Supreme Court in the Bearden opinion. At footnote 10, the Court states in relevant part:
      Numerous decisions by the state and federal courts have recognized that basic fairness forbids the revocation of probation when the probationer is without fault in his failure to pay the fine. For example, in United States v. Boswell, 605 F.2d 171 (CAS 1979), the court distinguished between revoking probation where the defendant did not have the resources to pay restitution and had no way to acquire them — a revocation the court found improper — from revoking probation where the defendant had the resources to pay or had negligently or deliberately allowed them to be dissipated in a manner that resulted in his inability to pay — an entirely legitimate action by the trial court.

        Bearden, supra, 461 U.S. at 660, 103 S.Ct. at 2071, 76 L.Ed.2d at 230.


text:
    481 A.2d 1230
    COMMONWEALTH of Pennsylvania v. Melvin WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 8, 1984.
    Filed Aug. 17, 1984.
    Reargument Denied Oct. 15, 1984.

      Allen N. Abrams, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for appellee Commonwealth.
    Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

Appellant contends that the trial court erred in denying his petition to withdraw his guilty plea after the Assistant District Attorney in charge of the case breached the terms of the negotiated plea.

The facts are not in dispute. The Commonwealth charged appellant with attempted murder, criminal conspiracy, aggravated assault, carrying firearms, possession of an instrument of crime, recklessly endangering another person, terroristic threats and simple assault.

After negotiations, the appellant agreed to plead guilty to the charges of aggravated assault and conspiracy and the Assistant District Attorney agreed to nol prosse the remaining charges and to make no recommendation as to the sentence.

On May 4, 1982, appellant entered pleas of guilty to aggravated assault and criminal conspiracy. Before appellant’s guilty pleas were accepted by the sentencing judge, the Honorable Michael E. Wallace of the Court of Common Pleas of Philadelphia, an extensive and thorough guilty plea colloquy was received in open court and made part of the record. Our examination of the colloquy satisfies us that it was in complete compliance with both Pa.R.Crim.P. 319 and the criteria for accepting guilty pleas as set forth from time to time by this court and the supreme court.

Appellant represented to the sentencing judge that his pleas were voluntary and that the facts of the case as presented by the Assistant District Attorney were true. The court accepted the plea, ordered a pre-sentence investigation and a mental evaluation and set a date for sentencing.

At the sentencing hearing on June 21, 1982, counsel for appellant informed the court that he had read both the pre-sentence report and the psychiatric evaluation and that he had nothing further to add. He then presented appellant’s mother who said to the judge what all loving mothers might be expected to say, namely, that appellant didn’t give her any trouble until he was fifteen (15) years old, that his troubles resulted from his association with the wrong crowd, that he expressed a desire to be a productive member of society, that he feels sorry for what he did, that he wants to finish his education and improve himself, and that he didn’t give her any trouble before that. (N.T. June 21, 1982, p. 3). Essentially, appellant’s mother was pleading for mercy, a plea that the trial judges of this Commonwealth hear every day.

The Assistant District Attorney then told the sentencing judge what he must have already known — that appellant had a long juvenile record of robberies, burglaries and assaults; that he had been committed to Glen Mills on more than one occasion; that he had been committed to the Youth Development Center at Cornwells Heights; that he was currently under sentence for a separate robbery; that the victim in this case was shot four times, though not by appellant; that the psychiatric evaluation offered a poor prognosis and that appellant was a recidivist. All of this information was contained in the reports which were in the sentencing judge’s possession. The Assistant District Attorney then said: “I believe the defendant should be sentenced to a period of incarceration for this very serious crime. ” (N.T. June 21, 1982, pp. 4-6). (Emphasis added). Clearly, the Assistant District Attorney reneged on his promise; pure and simple, he broke his word.

The sentencing judge then sentenced appellant to a term of not less than two and one-half (2 V2) years to not more than ten (10) years imprisonment on the charge of criminal conspiracy, said term to run consecutively to the sentence then being served by appellant. On the charge of aggravated assault, appellant was sentenced to ten (10) years probation to run concurrently with the sentence on the charge of criminal conspiracy.

The Assistant District Attorney then nol prossed all remaining charges.

On July 1, 1982, appellant filed timely petitions for reconsideration of sentence and to withdraw his pleas of guilty. Following a hearing on these petitions held on July 15, 1982, the sentencing judge denied both petitions. This appeal followed.

At the hearing on the petition to withdraw his guilty pleas, appellant argued that because the Assistant District Attorney violated the plea agreement, his plea was therefore not voluntary, and he should therefore be permitted to withdraw it.

The Assistant District Attorney agreed that for his part in the negotiated plea he would not make a recommendation as to sentence. Then, with obvious tongue in cheek, the Assistant District Attorney said:

In reviewing my notes and also the notes of testimony, at that time I did indicate that I would point out the defendant’s prior record. My note to myself on it from my DA’s file indicates that I mentioned the defendant’s prior record was serious, mentioned his prior conviction, and indicated to the Court that the minimum of four to eight guidelines could apply.
I don’t believe I made a recommendation that he be sentenced to that because, Number 1, the agreement. However, I don’t have the notes of the sentencing.
Regardless, your Honor, it is the Commonwealth’s position that if the defendant was jeopardized in any way by anything that I said at the time, and if that was not part of the agreement, that your Honor could reconsider the sentence and base that sentence upon whatever your Honor has by way of facts other than what I pointed out.
Your Honor does have the copy of the defendant’s prior record. Your Honor does have the defendant’s presentence and psychiatric evaluation, he received the — that your Honor does sentence people based upon that, and your observation of the facts, or your memory of the facts, and that the defendant could be resentenced based upon that without regard to whatever the Commonwealth said at the time.

(N.T. July 15, 1982, pp. 6-7).

First, we must point out that nowhere in the notes of testimony did the Assistant District Attorney ever say that he would point out the appellant’s record; and, further, at no time during the sentencing hearing did he indicate to the court that the minimum of “four to eight guidelines” could apply.

Secondly, as we have already indicated, the sentencing judge always had a copy of the pre-sentence report, psychiatric evaluation and criminal record.

The sentencing judge then said:

THE COURT: My recollection was as defense counsel stated, that the Commonwealth — I don’t think there is any disagreement as to that fact; the Commonwealth did violate in a technical sense the terms of the negotiated plea but I don’t think, since I don’t take any consideration of anything the Commonwealth’s Attorney says at sentencing anyhow I don’t see why in this case the defendant was prejudiced anyhow. I never pay any attention to the Commonwealth at any sentencing, for any reason.
Most District Attorneys of the Commonwealth know it. They seldom, if ever, make a recommendation. The fact that Mr. Kolansky alluded to the minimum four to eight recommended guidelines for subsequent robbery conviction, and the fact that I didn’t give him four to eight, I gave him a lesser sentence, is indicative of what I think of the Commonwealth’s recommendations in most instances.
I don’t feel that sufficient prejudice to the defendant has occurred to grant the petition as requested. Both petitions are denied.

(N.T. July 15, 1982, pp. 7-8).

In Commonwealth v. Potosnak, 289 Pa.Super. 115, 121, 432 A.2d 1078, 1081 (1981) we said:

It is well settled that the terms of a plea bargain which serves as an inducement to a defendant to plead guilty, must be binding on the prosecution. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, 433 (1971), remanded, People v. Santobello, 39 App. Div.2d 654, 331 N.Y.S.2d 776 (1st Dept. 1972); Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980). Therefore, the prosecutor has an affirmative duty on the part of the prosecutor to honor any and all such promises. If the Commonwealth violated a plea bargain, the defendant is entitled to the benefit of the bargain. Commonwealth v. Landi, supra; Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976). (Emphasis added).

The Commonwealth’s argument is convoluted. It admits of a violation of the plea agreement and in the same paragraph characterizes the violation as an “alleged violation” and an “unintentional violation.” As we have said, it was a violation pure and simple and the fact that it may have been inadvertent is of no consequence. Assuming the violation was inadvertent, the prejudice to appellant is not thereby diminished.

The Commonwealth’s reliance on United States v. Block, 660 F.2d 1086 (5th Cir.1981), cert. denied, Block v. United States, 456 U.S. 907, 102 S.Ct. 1753, 72 L.Ed.2d 164 (1982); United States v. Johnson, 582 F.2d 335 (5th Cir.1978), cert. denied, Johnson v. United States, 439 U.S. 1051, 99 S.Ct. 732, 58 L.Ed.2d 711 (1978); and United States v. Miller, 565 F.2d 1273 (3rd Cir.1977), cert. denied, Miller v. United States, 436 U.S. 959, 98 S.Ct. 3076, 57 L.Ed.2d 1125 (1978), is clearly misplaced. In each of those cases the prosecutor promised to make no recommendation at time of sentence and in each case the prosecutor in fact made no recommendation at time of sentence. In Block, Johnson and Miller, the prosecutor attempted to provide the court with relevant factual information or to correct mistakes but made no recommendation as to sentence.

The sentencing judge in his opinion written for this appeal, citing Commonwealth v. May, 485 Pa. 371, 402 A.2d 1008 (1979), correctly says that “[wjhere withdrawal of a guilty plea is sought after a sentence has been imposed, a showing of prejudice amounting to manifest injustice is required before withdrawal is properly justified.” L.Ct.Op. at 2. To the extent that that rule is applicable in a case such as this where the Commonwealth has violated the plea agreement, we hold said violation to constitute manifest injustice.

The sentencing judge indicated that the recommendation for incarceration made by the Assistant District Attorney in no way influenced his sentencing decision. We are convinced that this is so. However, it is immaterial whether the trial court would have been influenced by the Assistant District Attorney’s recommendation. Santobello v. New York, supra; Commonwealth v. Landi, supra.

The Assistant District Attorney violated the plea agreement and appellant is entitled to relief. Just as the Supreme Court said in Santobello, we, too, “emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.” Santobello v. New York, supra 404 U.S. at 263, 92 S.Ct. at 499.

At this juncture the critical question is the kind of relief which appellant should receive. He has asked us to allow him to withdraw his guilty pleas and proceed to trial. On the other hand, it could be argued that he is entitled to receive no more than the benefit of his bargain and that was to receive a sentence with no recommendation from the Commonwealth. We could do that by remanding for sentencing before a different judge; however, the vagaries of the criminal justice system — where “two to ten” to one judge is fair; to another judge severe; and to another judge nothing more than “a slap on the wrist” — convinces us that such a remand would do violence to our sense of justice. The “benefit of the bargain” principle is more easily — and fairly — applied in those situations where the Commonwealth promises to ask for a specific sentence and then in violation of that promise asks for a more severe sentence which is in fact given. In those situations, implementation of the “benefit of the bargain” principle can be done with certainty and fairness. Not so here.

In this case, we are inclined to the view expressed by Mr. Justice Douglas, in his concurring opinion, in Santobello:

In choosing a remedy, however, a court ought to accord a defendant’s preference considerable, if not controlling, weight, inasmuch as the fundamental rights flouted by a prosecutor’s breach of a plea bargain are those of the defendant, not of the State.

Santobello v. New York, supra at 267, 92 S.Ct. at 501.

Consequently, we agree with appellant that permitting him to withdraw his guilty pleas is the appropriate remedy. Of course, the charges previously nol prossed shall all be reinstated and appellant will plead anew to all the original charges.

The Judgment of Sentence is reversed and a new trial is granted.

      . 18 Pa.C.S. §§ 901, 2502.

      . Id. § 903.

      . Id. § 2702.

      . Id. §§ 6106, 6108.

      . Id. § 907 (A), (B).

      . Id. § 2705.

      . Id. § 2706.

      . Id. § 2701.

      . Appellant was seventeen (17) years old at the time of his arrest but following a certification hearing in juvenile court he was certified to be tried as an adult.

      . We note that the learned sentencing judge articulated the reasons for the sentences he imposed in full compliance with the mandate of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

      . In this appeal, appellant argues only the denial of his petition to withdraw the guilty pleas.