J-S14018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANGEL RIVERA,

                            Appellant                 No. 1152 EDA 2014


         Appeal from the Judgment of Sentence of December 6, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0006496-2013


BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                 FILED MAY 08, 2015

       Appellant, Angel Rivera, appeals from the judgment of sentence

entered on December 6, 2013, as made final by the denial of post-sentence

motions on April 9, 2014. We affirm.1
____________________________________________


1
  On February 3, 2015, the Commonwealth, pursuant to 42 Pa.C.S.A.
§ 5988, applied to this Court for an order sealing the certified record. See
Application to Seal Certified Record, 2/3/15. In relevant part, § 5988
provides:

       § 5988. Victims of sexual or physical abuse

       (a)    Release of name prohibited.--Notwithstanding any other
              provision of law to the contrary, in a prosecution involving
              a minor victim of sexual or physical abuse, the name of the
              minor victim shall not be disclosed by officers or
              employees of the court to the public, and any records
              revealing the name of the minor victim shall not be open
              to public inspection.

(Footnote Continued Next Page)
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      The trial court summarized the underlying facts as follows.

      On March 29, 2013, [Appellant] went to [the residence] of his
      14-year-old niece, [L.B.], the [c]omplainant.        [Appellant]
      entered [L.B.’s] bedroom, where he began to smoke marijuana.
      He asked [L.B.] if she wanted to smoke the marijuana. [L.B.]
      refused. [Appellant] then insisted that [L.B.] take a pill, which
      was later identified as Percocet. After ingesting the pill, [L.B]
      felt dizzy and she fell asleep.

      When [L.B] awoke, she was lying on her stomach, with her pants
      and underwear around her ankles. [Appellant] was lying on top
      of her, naked. [L.B.] was sore in her vagina and anal area. She
      felt [that Appellant had attempted] to insert his penis inside of
      her vagina. She was able to get from underneath [Appellant].
      She went to the bathroom. When she returned to her bedroom,
      [Appellant] was still there and he then began to feel [L.B’s]
      breast[s] and vagina.

Trial Court Opinion, 8/28/14, at 2-3 (not paginated; footnote omitted).

      The trial court summarized the ensuing procedural history in this case

as follows:
                       _______________________
(Footnote Continued)

                                          *         *   *

      (b)     Penalty.--Any person who violates this section commits a
              misdemeanor of the third degree.

42 Pa.C.S.A. § 5988.

In its application, the Commonwealth alleged that the victim of Appellant’s
offenses was a minor since she was under the age of 18 at the time
Appellant assaulted her. Application to Seal Certified Record, 2/3/15, at ¶ 2.
In addition, the Commonwealth alleged that the certified record contains
multiple documents that include the victim’s full name. Id. at ¶ 6. Our
review of the certified record confirms the accuracy of the Commonwealth’s
averments and Appellant did not respond to the Commonwealth’s request.
Accordingly, we shall grant the Commonwealth’s request for relief.




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       [Appellant] was arrested on April 25, 2013. [On May 23, 2013,
       the Commonwealth filed a criminal information charging
       Appellant with multiple offenses: criminal attempt to commit
       rape of a substantially impaired person, 18 Pa.C.S.A. §§ 901(a)
       and 3121(a)(4); unlawful contact with minor, 18 Pa.C.S.A.
       § 6318(a); sexual assault, 18 Pa.C.S.A. § 3124.1; endangering
       welfare of children, 18 Pa.C.S.A. § 4304(a); criminal attempt to
       commit involuntary deviate sexual intercourse with a
       substantially impaired person, 18 Pa.C.S.A. §§ 901(a) and
       3123(a)(4); indecent assault upon a substantially impaired
       person, 18 Pa.C.S.A. § 3126(a)(5); and corruption of minors, 18
       Pa.C.S.A § 6301(a)(1)(i). Information, 5/23/13.][2]

       On July 19, 201[3], [Appellant] entered a [negotiated] guilty
       plea to the charges of indecent assault and corruption of a
       minor.    [Appellant, the Commonwealth, and the trial court
       executed a written guilty plea colloquy stating that Appellant
       would be sentenced to two to four years’ imprisonment for the
       indecent assault conviction, followed by three years state sex
       offenders probation for the corruption of a minor conviction.]
       Following written and oral colloquies, the [t]rial [c]ourt accepted
       [Appellant’s] guilty plea [on the record].         Sentencing was
                                                         [3]
       deferred pending [a] Megan’s Law Assessment.          On November
       18, 2013, sentencing was again deferred, to allow [Appellant]
       further investigation under Megan’s Law.

       On December 6, 2013, [Appellant] appeared before the [t]rial
       [c]ourt for sentencing. Prior to [the court’s pronouncement of
____________________________________________


2
  Charges for aggravated indecent assault without consent (18 Pa.C.S.A.
§ 3125(a)(1)), harassment (18 Pa.C.S.A. § 2709(a)(1)), and sexual abuse of
children (18 Pa.C.S.A. § 6312(b)) were dismissed at the conclusion of
Appellant’s May 16, 2013 preliminary hearing. A separate charge of criminal
attempt to commit incest with a minor (18 Pa.C.S.A. §§ 901(a) and
4302(b)(2)) was later nolle prossed by the Commonwealth.
3
  Although the trial court refers to Megan’s Law, we note that this statutory
scheme expired on December 20, 2012. See Pa.C.S.A. §§ 9791-9799.9.
The Sexual Offender Registration and Notification Act (SORNA) replaced
Megan’s Law.         See 42 Pa.C.S.A. §§ 9799.10-9799.41.          Since this
discrepancy is immaterial to our disposition of this case, we did not alter the
trial court’s original references.



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      sentence, Appellant,] through counsel, moved to withdraw his
      guilty plea. Thereafter, [Appellant] personally addressed the
      [c]ourt. Following [Appellant’s] statement, the [t]rial [c]ourt
      denied [Appellant’s motion and sentenced him] to two to four
      years for the crime of indecent assault, followed by three years
      of probation for the crime of corrupting a minor. [This sentence
      reflected the terms of the negotiated guilty plea agreement
      entered between Appellant and the Commonwealth on July 19,
      2013.]

      On December 9, 2013, [Appellant], through counsel, filed a
      timely post-sentence motion, seeking to [withdraw his guilty
      plea]. On April 9, 2014, this motion was denied by operation of
      law. On April 11, 2014, [Appellant,] through counsel, filed a
      timely notice of appeal. On April 24, 2014, the [t]rial [c]ourt
      entered a [Pa.R.A.P.] 1925(b) [o]rder, directing [Appellant] to
      file a concise statement of errors complained of on appeal. On
      April 29, 29014, [Appellant] filed a timely [concise] statement.
      [The trial court issued its Rule 1925(a) opinion on August 28,
      2014.]

Trial Court Opinion, 8/28/14, at 1-2 (not paginated; footnote in original).

      Appellant’s brief raises the following question for our review:

      Whether the [trial] court erred in denying Appellant’s motion to
      withdraw his guilty plea made prior to the imposition of
      sentence, where Appellant presented a fair and just reason for
      the withdrawal of the plea, and the Commonwealth would not
      have been substantially prejudiced by the withdrawal?

Appellant’s Brief at 3.

      Appellant argues that the trial court abused its discretion in denying

his motion to withdraw his guilty plea. Initially, Appellant points out that the

more generous, pre-sentence standard for withdrawing a guilty plea should

apply since Appellant moved to withdraw his plea before the trial court

formally imposed his punishment.      Under this standard, Appellant argues

that his assertion of actual innocence established a “fair and just” reason to

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support withdrawal. Appellant concludes that the five-month delay between

the date he entered his guilty plea and the date he moved to withdraw his

plea was not so long as to prejudice the Commonwealth in its prosecution of

this case.

       In    response,   the   Commonwealth     claims   that   the   stricter,

post-sentence standard for withdrawal of a guilty plea should apply under

the circumstances of this case. The Commonwealth points out that the more

stringent “manifest injustice” standard applies since Appellant accepted a

negotiated plea and was aware of his sentence before he filed his motion to

withdraw.    Using this standard, the Commonwealth argues that, since

Appellant’s plea was entered knowingly, intelligently, and voluntarily, no

manifest injustice resulted from the trial court’s refusal to permit Appellant

to withdraw his plea.    In the alternative, the Commonwealth argues that

Appellant was not entitled to withdraw his plea even under the more lenient

“fair and just reason” standard because he did not assert his actual

innocence.

      We recently elaborated on the principles and standards that govern a

defendant’s request to withdraw a guilty plea.       In Commonwealth v.

Prendes, 97 A.3d 337 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa.

2014), this Court stated:

      “At any time before the imposition of sentence, the court may, in
      its discretion, permit, upon motion of the defendant, or direct
      sua sponte, the withdrawal of a plea of guilty or nolo contendere
      and the substitution of a plea of not guilty.”        Pa.R.Crim.P

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     591(A); Commonwealth v. Santos, 301 A.2d 829, 830 (Pa.
     1973). “Although there is no absolute right to withdraw a guilty
     plea, properly received by the trial court, it is clear that a
     request made [b]efore sentencing ... should be liberally
     allowed.” Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa.
     1973). “Thus, in determining whether to grant a pre-sentence
     motion for withdrawal of a guilty plea, ‘the test to be applied by
     the trial courts is fairness and justice.’ ” Id. at 271. “If the trial
     court finds ‘any fair and just reason’, withdrawal of the plea
     before sentence should be freely permitted, unless the
     prosecution has been ‘substantially prejudiced.’”         Id. As a
     general rule, “the mere articulation of innocence [is] a ‘fair and
     just’ reason for the pre-sentence withdrawal of a guilty plea
     unless the Commonwealth has demonstrated that it would be
     substantially prejudiced.” Commonwealth v. Katonka, 33 A.3d
     44, 46 (Pa. Super. 2011) (en banc) [].

     [Of the considerations outlined in Forbes, “the critical one is the
     presence or lack of prejudice to the Commonwealth.”
     Commonwealth v. Boofer, 375 A.2d 173, 174 (Pa. Super.
     1977) (citing Commonwealth v. McLaughlin, 366 A.2d 238,
     241 (Pa. 1976) (stating: “[T]he existence of substantial
     prejudice to the Commonwealth is the crucial factor in
     determining whether to allow a presentence withdraw of a guilty
     plea”)). Generally speaking, “prejudice would require a showing
     that due to events occurring after the plea was entered, the
     Commonwealth is placed in a worse position than it would have
     been had trial taken place as scheduled.” Commonwealth v.
     Kirsch, 930 A.2d 1282, 1286 (Pa. Super. 2007), appeal denied,
     945 A.2d 168 (Pa. 2008). When a guilty plea is withdrawn
     before sentencing, the withdrawal usually does not substantially
     prejudice the Commonwealth if it simply places the parties “back
     in the pretrial stage of proceedings.” Id. Mere speculation that
     witnesses would not appear at a subsequent trial or would
     change their stories does not alone rise to the level of
     substantial prejudice. McLaughlin, 366 A.2d at 241.]
     In contrast, after the court has imposed a sentence, a defendant
     can withdraw his guilty plea “only where necessary to correct a
     manifest injustice.” Commonwealth v. Starr, 301 A.2d 592,
     595 (Pa. 1973). “[P]ost-sentence motions for withdrawal are
     subject to higher scrutiny since courts strive to discourage the
     entry   of guilty      pleas as     sentencing-testing    devices.”
     Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa. Super. 2010),
     appeal denied, 32 A.3d 1276 (Pa. 2011). If the appellant knows

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      the only possible sentence he can get for the crime to which he
      pled guilty, then any pre-sentence motion to withdraw the plea
      is akin to a post-sentence motion to withdraw the plea, and the
      “manifest injustice” standard will apply to the pre-sentence
      motion. Commonwealth v. Lesko, 467 A.2d 307, 310 (Pa.
      1983).

      To be valid [under the “manifest injustice” standard], a guilty
      plea must be knowingly, voluntarily and intelligently entered.
      Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super.
      2003).    “[A] manifest injustice occurs when a plea is not
      tendered      knowingly,      intelligently,    voluntarily,     and
      understandingly.” Commonwealth v. Gunter, 771 A.2d 767,
      771 (Pa. 2001). The Pennsylvania Rules of Criminal Procedure
      mandate pleas be taken in open court and require the court to
      conduct an on-the-record colloquy to ascertain whether a
      defendant is aware of his rights and the consequences of his
      plea. Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa.
      Super. 2002) (citing Pa.R.Crim.P. 590). Under Rule 590, the
      court should confirm, inter alia, that a defendant understands:
      (1) the nature of the charges to which he is pleading guilty; (2)
      the factual basis for the plea; (3) he is giving up his right to trial
      by jury; (4) and the presumption of innocence; (5) he is aware
      of the permissible ranges of sentences and fines possible; and
      (6) the court is not bound by the terms of the agreement unless
      the court accepts the plea. Commonwealth v. Watson, 835
      A.2d 786 (Pa. Super. 2003). The reviewing [c]ourt will evaluate
      the adequacy of the plea colloquy and the voluntariness of the
      resulting plea by examining the totality of the circumstances
      surrounding the entry of that plea. Commonwealth v.
      Muhammad, 794 A.2d 378 (Pa. Super. 2002). Pennsylvania
      law presumes a defendant who entered a guilty plea was aware
      of what he was doing, and the defendant bears the burden of
      proving otherwise. Pollard, supra.

Prendes, 97 A.3d at 351-354 (parallel citations omitted).

      Initially, we agree with the Commonwealth that Appellant’s request to

withdraw his plea must be judged under the more stringent “manifest

injustice” standard since Appellant was aware of the sentence he would

receive as a result of his guilty pleas to indecent assault and corruption of a

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minor.     The notes of testimony from Appellant’s plea hearing reflect that

Appellant executed a written plea agreement and that the trial court

thoroughly examined Appellant’s comprehension of the terms of that

agreement.      In response to questions posed by the trial court, Appellant

stated that: (1) he recognized the agreement; (2) he reviewed it with trial

counsel; (3) trial counsel explained it to him; (4) he understood trial

counsel’s explanation of the document; and, (5) he freely and voluntarily

signed the agreement.         N.T., 7/19/13, at 4-5.       On the first page of the

document, under the heading “Plea Bargain or Agreement,” the agreement

states that the district attorney promised to recommend a sentence of two

to four years’ confinement followed by three years of state sex-offender

probation.4     Written Guilty Plea Colloquy, 7/19/13.             Appellant, defense

counsel, the district attorney, and the trial court signed the agreement. Id.

At the conclusion of Appellant’s plea hearing, the trial court accepted the

negotiated plea agreement as having been knowingly, voluntarily, and

intelligently entered by Appellant. N.T., 7/19/13, at 8-9. For each of these

reasons, we conclude that, as in Prendes, the “manifest injustice” standard

should apply since Appellant was fully aware of the sentence he would

receive because of the guilty pleas that he entered. See Prendes, 97 A.3d

at   354    (manifest    injustice   standard    applies   where    defendant’s   plea
____________________________________________


4
  Ultimately, the trial court imposed a sentence that conformed to the terms
of Appellant’s negotiated guilty plea.



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agreement includes negotiated sentence, trial court accepts guilty plea with

the negotiated sentence, and defendant is fully aware of sentence he would

receive).

      We further conclude that, because Appellant tendered his guilty pleas

in a knowing, voluntary, and intelligent fashion, he failed to establish that

enforcement of his guilty pleas resulted in a manifest injustice. Relevant to

this conclusion, we cite with approval the following findings of the trial court.

      On July 19, 2014, [Appellant] appeared before the [t]rial [c]ourt
      and at that time, he entered a guilty plea to the charges of
      indecent assault and corruption of a minor. Ancillary to his
      guilty plea, [Appellant] was subjected to thorough written and
      oral colloquies. The [t]rial [c]ourt reviewed the terms of the
      written guilty plea agreement with [Appellant] and thoroughly
      questioned [Appellant] as to [his] ability to understand, and his
      actual understanding of, the written plea agreement and what it
      meant to plead guilty.       Pursuant to the written and oral
      colloquies, [Appellant] acknowledged the following facts.

      [Appellant] completed 11 years of school. He could read, write
      and understand the English language. He was not currently, nor
      had he ever, treated for mental illness. He was not under the
      influence of any substances, including prescribed medications,
      which would interfere with his ability to understand what was
      going on. He had reviewed the written plea agreement with his
      attorney, who had explained the terms of the agreement. He
      understood the terms of the agreement. He was aware of his
      rights and he understood the ramifications of the plea agreement
      upon those rights. [In particular, the trial court established that
      Appellant understood: (1) the maximum penalties and fines for
      his offenses; (2) his absolute right to proceed to trial before a
      judge or a jury; (3) his right to select 12 jurors from the
      community; (4) that any jury would have to reach a unanimous
      verdict; (5) that his guilty pleas extinguished his right to proceed
      to trial; (6) that the district attorney would have to prove his
      guilt beyond a reasonable doubt; (7) that his guilty pleas
      extinguished his right to challenge inculpatory evidence; (8) that
      a guilty plea could result in a violation of any parole or

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     probationary sentence he was serving; (9) that his guilty pleas
     extinguished certain pre-trial rights such as the right to seek
     suppression of inculpatory evidence; and, (10) that his guilty
     pleas limited the scope of any appeal. N.T., 7/19/13, at 5-8.
     Appellant] did not have any questions of the [c]ourt. He was
     aware of the facts of the case, which had been read to him. He
     committed the crimes of indecent assault and corruption of a
     minor and he was voluntarily pleading guilty to those crimes.

     Following the colloquies, the [t]rial [c]ourt accepted [Appellant’s]
     guilty plea[s], finding that [Appellant’s] decision to plead guilty
     was made knowingly, intelligently and voluntarily. Sentencing
     was deferred pending Megan’s Law Assessment. The [t]rial
     [c]ourt inquired as to whether a mental health evaluation was
     needed. [Appellant’s] counsel responded that he did not think
     so and [Appellant], himself, did not indicate otherwise.

Trial Court Opinion, 8/28/14, at 1-4 (not paginated).       We are satisfied,

based on the record before us, that Appellant entered valid guilty pleas to

indecent assault and corruption of minors on July 19, 2013.

     Even if we were to apply the more lenient “fair and just reason”

standard, we would conclude that Appellant is not entitled to relief.

Appellant presented his request to withdraw his guilty pleas during the

following exchange that took place at his December 6, 2013 sentencing

hearing.

     THE COURT: Counsel?
     [DEFENSE COUNSEL]: Your Honor, I have a motion to withdraw
     my client’s guilty plea. I’ve talked to him. He is maintaining his
     innocence. There is some confusion on the deal and after
     consideration, he is not interested.

     THE COURT: What confusion is there on the deal?

     [DEFENSE COUNSEL]: Your Honor, my client has mental health
     issues. And after talking to him, it seems like that was what the
     problem was when he originally accepted the offer.

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J-S14018-15



       THE COURT: That’s still not clear. That’s pretty vague to me,

       [DEFENSE COUNSEL]: Okay. Well, I mean, he will address the
       [c]ourt as well.

       THE COURT: Okay.

       [APPELLANT]: I just got new evidence on the case.

       THE COURT: That has nothing to do with mental health issues.

       [APPELLANT]: No, I do. I ain’t too good, you know, reading and
       writing and something like that. I’ve been taking medication
       since I was five years old. I just wasn’t sure; you know what
       I’m saying? You know, in a situation like that I was confused,
       sir. I was confused. I apologize.

       THE COURT: Counsel?

       [APPELLANT]: I need some help.

       THE COURT: Counsel?

N.T., 12/6/13, at 3-4.

       Based on the preceding exchange, it is evident that, while defense

counsel made a passing reference to Appellant’s actual innocence as a basis

to grant the motion to withdraw, Appellant never mentioned his actual

innocence as grounds for relief.5         On their face, Appellant’s statements to

the trial court referred only to unspecified new evidence, mental health
____________________________________________


5
  Read in context, even trial counsel’s statements to the trial court suggest
that mental health issues, not actual innocence, lay at the root of Appellant’s
motion to withdraw his guilty pleas. See N.T., 12/6/13, at 3 (“Your Honor,
my client has mental health issues. And after talking to him, it seems like
[Appellant’s mental health issues were] what the problem was when
he originally accepted the offer.”) (emphasis added).



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issues, difficulty with reading and writing, the use of medication, and

confusion.      Appellant, however, specifically disavowed each of these

conditions and/or grounds for relief at his July 2013 plea hearing. In fact,

Appellant nowhere asserted his actual innocence, disputed the factual basis

for his pleas, or declared that he did not commit the instant offenses.

Because Appellant never asserted his actual innocence, he failed to offer a

fair and just reason in support of the withdrawal of his guilty pleas.

Compare Commonwealth v. Carrasquillo, 78 A.3d 1120, 1123 (Pa.

Super. 2013) (en banc) (allowing defendant to withdraw guilty plea where,

despite rambling and outlandish statements, defendant asserted his actual

innocence by declaring, “[he] didn’t commit this crime”), appeal granted, 86

A.3d 830 (Pa. 2014). For each of these reasons, we hold that the trial court

did not abuse its discretion in denying Appellant’s motion to withdraw his

guilty pleas.

      Judgment of sentence affirmed.   Commonwealth’s application to seal

certified record granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2015




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