319

(a) Generally. Pleas shall be taken in open court. A defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. The judge may refuse to accept a plea of guilty, and shall not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record. If the defendant shall refuse to plead, the court shall enter a plea of not guilty on the defendant's behalf.

(b) Plea Agreements.
(1) The trial judge shall not participate in the plea negotiations preceding an agreement.

(2) When counsel for both sides have arrived at a plea agreement they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.

(3) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.

(c) Murder Cases. In cases in which the imposition of a sentence of death is not authorized, when a defendant enters a plea of guilty to a charge of murder generally, the judge before whom the plea was entered shall alone determine the degree of guilt.

Note: Paragraph (a) adopted June 30, 1964, effective January 1, 1965; amended November 18, 1968, effective February 3, 1969; paragraph (b) adopted and title of rule amended October 3, 1972, effective thirty days hence; specific areas of inquiry in Comment deleted in 1972 amendment, reinstated in revised form March 28, 1973, effective immediately; amended June 29, 1977, effective as to cases in which the indictment or infromation is filed on or after January 1, 1978; paragraph (c) added and Comment amended May 22, 1978, effective July 1, 1978; Comment revised November 9, 1984, effective January 2, 1985.

Comment: The purpose of paragraph (a) is to codify the requirement that the judge, on the record, ascertain from the defendant that the guilty plea is voluntarily and understandingly tendered. On the mandatory nature of this practice, see Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974); Commonwealth v. Campbell, 451 Pa. 465, 304 A.2d 121 (1973); Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 (1973).

It is difficult to formulate a comprehensive list of questions a judge must ask of a defendant in determining whether the judge should accept the plea of guilty. Court decisions constantly add areas to be encompassed in determining whether the defendant understands the full impact and consequences of his plea, but is nevertheless willing to enter that plea. However, at a minimum the judge should ask questions to elicit the following information:

(1) Does the defendant understand the nature of the charges to which he is pleading guilty?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he has a right to trial by jury?

(4) Does the defendant understand that he is presumed innocent until his is found guilty?

(5) Is the defendant aware of the permissable range of sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Inquiry into the above six areas is mandatory during a guilty plea colloquy, under Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977), and Commonwealth v. Dilbeck, 466 Pa. 353 A.2d 824 (1976)

Many, tho not all, of the areas to be covered by such questions are set forth in a footnote to the Court's opinion in Commonwealth v. Martin, 445, Pa. 49, 54-56, 282 A.2d 241, 244-245 (1971), in which the colloquy conducted by the trial judge is cited with approval. See also Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976), and Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). At to the requirement that the judge ascertain that there is a factual basis for the plea, see Commonwealth v. Maddox, 450 Pa. 406, 300 A.2d 503 (1973) and Commonwealth v. Jackson, 450 Pa. 417, 299 A,2d 209 (1973).

It is advisable that the judge should conduct the examination of the defendant. However, paragraph (a) does not prevent defense counsel or the attorney for the Commonwealth from conducting part or all of the examination of the defendant, as permitted by the judge. In addition, nothing in the rule would preclude the use of a written colloquy that is read, completed, signed by the defendant, and made part of the record of the plea proceedings. This written colloquy would have to be supplemented by some on-the-record oral examination. Its use would not, of course, change any other requirements of law, including these rules, regarding the prerequisites of a valid guilty plea.

Paragraph (b) is intended to alter the process of what is commonly known as "plea bargaining" so as to make it a matter of public record and to insure that it does not involve prejudicing or compromising the independent position of the judge. See Commonwealth v. Alvarado, 432 Pa. 516, 276 A.2d 526 (1971); Santobello v. New York, 404 U.S. 257 (1971), Commonwealth v. Wilkins, 442 Pa. 524, 277 A.2d 341 (1971), Commonwealth v Evans, 434 Pa. 52, 252 A.2d 689 (1969); Commonwealth v Scoleri, 415 Pa. 218, 202 A.2e 521 (1964); A.B.A. Minimum Standards Relating to Pleas of guilty § 3.3(a), at 71-74 (Approved Draft 1968); President's Commission on Law Enforcement and the Administration of Justice, "The Challenge of Crime in a Free Society" at 134 (1967).

The "terms" of the plea agreement, referred to in subparagraph (b)(2), frequently involve the attorney for the Commonwealth - in exchange for the defendant's plea of guilty, and perhaps for the defendant's promise to cooperate with law enforcement officials - promising such concessions as a reduction of a charge to a less serious offense, or the dropping of one or more additional charges or a recommendation of a lenient sentence, or a combination of these. In any event, paragraph (b) is intended to assure that all terms of the quid pro quo are openly acknowledged for the court's assessment.

Paragraph (b)(3) requires the judge to permit the defendant to withdraw a plea the judge has accepted when the judge is unable to comply with a plea agreement on which the plea was based. See Rule 320.

When a plea agreement has been negotiated, there must be an inquiry in order to determine whether the plea is made voluntarily and understandingly. However, the terms of the plea agreement should be stated in the record and it should be made clear that the defendant understands the nature and effect of the agreement.

The addition of paragraph (c) changes prior practice in Pennsylvania. Under prior Rule 319A (suspended effective November 1, 1976) the judge could convene a panel of three judges to determine the degree of guilt in murder cases in which the imposition of a sentence of death was not statutorily authorized.