J-S57027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                       Appellee                 :
                                                :
                v.                              :
                                                :
    MARK MCKAY                                  :
                                                :
                       Appellant                :          No. 3778 EDA 2017


         Appeal from the Judgment of Sentence Entered June 6, 2017
                in the Court of Common Pleas of Bucks County
             Criminal Division at No.: CP-09-CR-0008249-2016


BEFORE:      PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PLATT, J.:                                  FILED NOVEMBER 08, 2018

       Appellant, Mark McKay, appeals from the judgment of sentence imposed

after his open guilty plea to two counts of delivery of a controlled substance,

and one count each of possession of a controlled substance, possession of

drug   paraphernalia,      and     criminal    use   of    a   communication   facility.1

Specifically, he challenges the trial court’s denial of his post-sentence motion

to withdraw his plea. We affirm.

       On June 6, 2017, Appellant pleaded guilty to the above charges, which

stemmed from his sale of methamphetamine to a confidential informant on

two occasions in October 2016. The court sentenced him to an aggregate


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1 35 P.S. §§ 780-113(a)(30), (16), and (32); and 18 Pa.C.S.A. § 7512(a),
respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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term of incarceration of not less than ten nor more than twenty years. On

June 14, 2017, Appellant filed a petition to withdraw his guilty plea, which the

court denied on November 9, 2017 after a hearing.              Appellant timely

appealed.2

       Appellant raises two questions for our review: “Was [Appellant’s] use of

drugs prior to his plea sufficient to establish manifest injustice?” and “Was

[Appellant] competent when he entered the guilty plea?” (Appellant’s Brief,

at 5) (most capitalization omitted).

       Both of Appellant’s issues challenge the court’s denial of his motion to

withdraw his guilty plea.        (See id. at 11-19).   Specifically, although he

concedes that the colloquy was thorough, he maintains his guilty plea was not

knowing, intelligent, and voluntary because he was innocent and only entered

the plea because he recently had ingested narcotics and he was distressed

about his son, who had elected not to testify on his behalf.         (See id.).

Appellant is due no relief.

       “We begin with the principle that a defendant has no absolute right to

withdraw a guilty plea; rather, the decision to grant such a motion lies within

the sound discretion of the trial court.” Commonwealth v. Muhammed,

794 A.2d 378, 382 (Pa. Super. 2002) (citation omitted). Further:



____________________________________________


2 Pursuant to the court’s order, Appellant filed a timely concise statement of
errors complained of on November 28, 2017. The court filed an opinion on
March 15, 2018. See Pa.R.A.P. 1925.

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             The standard for withdrawal of a guilty plea after imposition
      of sentence [requires] a showing of prejudice on the order of
      manifest injustice . . . before withdrawal is properly justified. A
      plea rises to the level of manifest injustice when it was entered
      into involuntarily, unknowingly, or unintelligently.

             A showing of manifest injustice is required after imposition
      of sentence since, at this stage of the proceeding, permitting [a]
      liberal standard . . . might encourage the entrance of a plea as a
      sentence testing device. We note that disappointment by a
      defendant in the sentence actually imposed does not represent
      manifest injustice.

                                   *    *    *

      . . . This Court evaluates the adequacy of the guilty plea colloquy
      and the voluntariness of the resulting plea by examining the
      totality of the circumstances surrounding the entry of that plea.

                                   *    *    *

            We note that one is bound by one’s statements made during
      a plea colloquy, and may not successfully assert claims that
      contradict such statements. . . .

Id. at 383-84 (citations and quotation marks omitted).

      Here, Appellant’s claims of innocence and the invalidity of his plea are

belied by the record. First, as to his claim of innocence, in his written guilty

plea colloquy, he admitted he was guilty of the crimes with which he had been

charged. (See Exhibit D-1, Guilty Plea Colloquy, 6/06/17, at 3). During the

guilty plea hearing, Appellant confirmed that he answered the questions on

the written colloquy truthfully, and he acknowledged that he delivered

controlled substances as alleged and the truth of the factual basis for his guilty

plea. (See N.T. Guilty Plea, 6/06/17, at 49, 57).




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      Next, as to Appellant’s claim that he did not enter a knowing and

voluntary plea because of drugs and stress, the trial court explains:

             During the on-the-record colloquy, [Appellant] explicitly
      stated that he understood everything that was contained in the
      written guilty plea colloquy and that he did not have any questions
      about its contents. (See id. at 28-29). Th[e] court then
      conducted an extensive colloquy on the record with regard to the
      elements of the crimes, the maximum sentences that could be
      imposed, the discretion of the court with regard to imposition of
      concurrent or consecutive sentences, waiver of his right to litigate
      pre-trial motions or appeal pre-trial rulings, the jury selection
      process, the presumption of innocence, his right of confrontation,
      his right not to testify or present evidence and that [] jurors would
      be instructed that they could not draw negative inference from the
      assertion of that right, his right to testify or present evidence
      should he [choose] to do so, the Commonwealth’s burden of proof,
      and the requirement that the jury verdict be unanimous. [(See
      id. at 27-54).] [Appellant] was asked more than ten times
      whether he understood what was being explained to him. Each
      time he responded, “Yes, ma’am.” (Id. at 34-35, 38-41, 43, 46,
      48, 54).

            Contrary to [Appellant’s] assertion, there was no evidence
      that he was experiencing cognitive difficulties due to his drug use.
      [Appellant] was alert and responsive during the guilty plea
      colloquy.     The recordings of his telephone conversations
      immediately before and after the guilty pleas were entered
      established that his ability to think clearly and to communicate his
      thoughts were unimpaired.          During the guilty plea colloquy
      [Appellant] was asked if he had any mental health issues. He
      responded, “No, ma’am.” He was asked, “Are you abusing at this
      time any drugs or alcohol?” He responded, “No, Ma’am.” (Id. at
      49). [Appellant] was asked, “[D]id you ingest anything [that]
      might interfere with your ability to understand what you are doing
      here today or make decisions?” [Appellant] answered, “No,
      ma’am.”     (Id. at 30).       [Appellant] offered no evidence to
      corroborate his assertion that he was actively abusing drugs and
      was experiencing deleterious effects from that use while he was




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       housed at Hoffman Hall.[3] . . . On the contrary, Exhibit D-2, a
       letter from the Unit Manager from Hoffman Hall introduced by the
       defense at the time of sentencing, indicated that [Appellant]
       complied with rules of that facility.

                                       *       *   *

             [Also, Appellant’s] interactions with his son demonstrate
       beyond question that [Appellant] was not suffering from any
       cognitive dysfunction over the situation with [him]. . . . In any
       case, the mere fact that a defendant was undergoing stress at the
       time he entered a guilty plea will not invalidate the plea, absent
       proof that he was incompetent at the time the plea was entered.
       See Commonwealth v. Myers, 642 A.2d 1103, 1107 (Pa. Super.
       1994)[.]

(Trial Court Opinion, 3/15/18, at 5-7, 9-10) (one citation and some

capitalization omitted; record citation formatting provided).

       Based on the foregoing analysis, and our independent review of the

certified record, we conclude that the trial court properly exercised its

discretion when it found Appellant’s post-sentence claims of innocence and

manifest injustice lack merit. See Muhammed, supra at 382. The record

confirms that he voluntarily, intelligently, and knowingly entered his guilty

plea. See id. at 383-84. Appellant’s issues lack merit.

       Judgment of sentence affirmed.




____________________________________________


3 Hoffman Hall appears to be a halfway house where Appellant briefly lived.
(See N.T. Guilty Plea, at 61).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/18




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