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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                  v.                   :
                                       :
CHRISTOPHER CABAN,                     :         No. 1820 EDA 2016
                                       :
                       Appellant       :


          Appeal from the Judgment of Sentence, March 9, 2016,
             in the Court of Common Pleas of Chester County
            Criminal Division at No. CP-15-CR-0000716-2015


BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED MARCH 28, 2017

     Christopher Caban appeals from the March 9, 2016 judgment of

sentence entered in the Court of Common Pleas of Chester County after he

pled guilty to one count each of burglary, criminal trespass, attempted

burglary, indecent assault, and disorderly conduct.1 The trial court imposed

an aggregate sentence of 2 to 4 years of imprisonment. We affirm.

     The facts giving rise to appellant’s guilty pleas began in the early

morning hours of December 28, 2014, when appellant entered an apartment

complex located in West Chester Borough, Chester County.              Video

surveillance showed appellant attempting to enter various apartments in the

complex, but being unable to enter because of locked doors. Appellant then


1
  18 Pa.C.S.A. §§ 3502(a)(i), 3503(a)(1)(i), 901(a), 3126(a)(1), and
5503(a)(4).
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came across an unlocked door and was able to enter unit B-12. The record

demonstrates that after appellant entered this unit, he saw a young man

sleeping in a bedroom and proceeded to commit a variety of sexual assaults

upon that man.

      The record also reflects that following imposition of judgment of

sentence, appellant filed a timely motion to withdraw his guilty plea. After

an evidentiary hearing, the trial court denied the motion. Appellant filed a

timely notice of appeal. Appellant then complied with the trial court’s order

and filed a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). The trial court then filed its Rule 1925(a) opinion.

      Appellant raises the following issue for our review:

            Did the trial court abuse its discretion in denying
            [a]ppellant’s motion to withdraw his guilty plea
            where withdrawal was necessary to correct a
            manifest injustice?

Appellant’s brief at 1.

      In reviewing this appeal, we are mindful of the following:

            [A]fter the court has imposed a sentence, a
            defendant can withdraw his guilty plea only where
            necessary    to   correct  a    manifest    injustice.
            [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. []

            To be valid, a guilty plea must be knowingly,
            voluntarily and intelligently entered. [A] manifest
            injustice occurs when a plea is not tendered
            knowingly,     intelligently,     voluntarily, and
            understandingly. The Pennsylvania Rules of Criminal


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            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.
            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. The reviewing Court 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. 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.

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014) (internal

citations and quotations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).

      Additionally, “a defendant is bound by the statements which he makes

during his plea colloquy.”    Commonwealth v. Barnes, 687 A.2d 1163,

1167 (Pa. 1997) (citations omitted). As such, a defendant “may not assert

grounds for withdrawing the plea that contradict statements made when he

pled guilty,” and he cannot recant the representations he made in court

when he entered his guilty plea. Id. (citation omitted). Moreover, the law

does not require that a defendant be pleased with the outcome of his

decision to plead guilty. The law only requires that a defendant’s decision to

plead guilty be made knowingly, voluntarily, and intelligently.          See

Commonwealth v. Moser, 921 A.2d 526, 528-529 (Pa.Super. 2007).


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      Here, appellant contends that he “has established that it would be a

manifest injustice to not allow him to go to trial under the specific facts of

the case” because “he consistently asserted his innocence,” he filed his

motion to withdraw 10 days before the actual trial date, there would be no

prejudice to the Commonwealth, and because appellant “did not use his

guilty plea as a sentence-testing device.”    (Appellant’s brief at page 18.)

Appellant misapprehends the law. In the context of a guilty plea, a manifest

injustice occurs only where the plea is not tendered knowingly, intelligently,

voluntarily, and understandingly. See Prendes, 97 A.3d at 352.

      Here, the record demonstrates that appellant tendered his plea

knowingly, intelligently, voluntarily, and understandingly.   Appellant read,

completed, and signed an extensive 12-page written guilty plea colloquy,

which is part of the certified record.       (Notes of testimony, 3/9/16 at

Commonwealth’s Exhibit “3 PSM.”)       On that form, appellant affirmed, in

writing, among other things, (i) that he admitted to the facts underlying the

crimes to which he pled guilty; (ii) that his lawyer explained to him the

elements of the offenses to which he pled guilty; (iii) that he understood the

charges against him; (iv) that he did not need to enter a guilty plea, but was

able to plead not guilty and go to trial; (v) that he had sufficient time to

discuss the charges with his lawyer, was satisfied with the advice his lawyer

gave him, and was satisfied with his lawyer’s representation; (vi) that

although he was assisted by counsel, the decision to plead guilty was his and



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his alone; and (vii) that he read the entire written colloquy, understood its

full meaning, and still wanted to plead guilty. (Id.)

      The record further reflects that the sentencing court conducted an oral

colloquy wherein appellant admitted to the facts underlying his plea. (Notes

of testimony, 3/9/16 at 4.)    During that colloquy, appellant also affirmed

that he went over the written guilty plea colloquy with his attorney, signed

the colloquy, and was satisfied with his attorney’s representation.   (Id. at

4-5.) Appellant denied being under the influence of drugs or alcohol. (Id.

at 5.) Appellant acknowledged that he understood the sentencing guideline

ranges that he was subject to.    (Id. at 8.) He stated that he understood

that he could have gone to trial and defended against the charges. (Id. at

10.) The following then took place:

            THE COURT:       Basically, when you plead guilty,
            you’re giving up the right to fight the case. Do you
            understand that?

            [APPELLANT]: I do.

            THE COURT: Do you want to do that?

            [APPELLANT]: Yes.

            THE COURT:       Is this a knowing and intelligent
            decision on your behalf?

            [APPELLANT]: Yes.

            THE COURT:     And it’s a voluntary decision on your
            behalf?

            [APPELLANT]: Yes.



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Id.

            THE COURT: Basically, sir, any time you have a
            guilty plea, you have four grounds that you could
            possibly appeal on: One would be jurisdiction. In
            this case, this all happened in West Chester which is
            in Chester County.

            [APPELLANT]: Yes.

            THE COURT: Another ground is the sentence that
            was imposed is illegal. What that means is that
            these sentences have to be within the boundaries of
            the statutes. So these fit within those boundaries.
            So it’s legal.

            [APPELLANT]: Yes.

            THE COURT: The third ground is that your attorney
            was not competent.         Has [your attorney,]
            Ms. Wilson[,] been competent?

            [APPELLANT]: Yes, she is.

            THE COURT: The fourth ground is that this plea was
            involuntary or unknowing. Is this a voluntary plea,
            sir?

            [APPELLANT]: Yes, it’s voluntary.

            THE COURT: And it’s a knowing plea, sir?

            [APPELLANT]: Yes.

Id. at 14-15.

      After thoroughly reviewing the record, we conclude that the totality of

the circumstances surrounding appellant’s entry of his guilty plea discloses

that appellant fully understood the nature and consequences of his plea and

that he entered that plea knowingly, intelligently, and voluntarily.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2017




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