J-S48011-14

NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellee,              :
                                           :
            v.                             :
                                           :
DWAYNE ARMAND WEIR,                        :
                                           :
                    Appellant              : No. 417 MDA 2014

        Appeal from the Judgment of Sentence December 20, 2013,
                 Court of Common Pleas, Lancaster County,
           Criminal Division at No(s): CP-36-CR-0003244-2012,
           CP-36-CR-0003251-2012, CP-36-CR-0003253-2012
           CP-36-CR-0003327-2012, CP-36-CR-0004003-2013
          CP-36-CR-0004868-2011 and CP-36-CR-0004872-2011

BEFORE: DONOHUE, JENKINS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED AUGUST 01, 2014



judgment of sentence entered by the Lancaster County Court of Common

Pleas. We affirm.

      On July 11, 2013, a jury found Weir guilty of burglary, criminal

mischief, and theft by unlawful taking for a home invasion that occurred in

July of 2010.1 On August 28, 2013, Weir pled nolo contendre to nine counts

of burglary; one count of flight to avoid apprehension; eleven counts of theft

by unlawful taking; three counts of receiving stolen property; one count of



1
   18 Pa.C.S.A. §§ 3502(a), 3304(a)(5), 3921(a). A full recitation of the
facts underlying all of the charges levied against Weir is contained in the trial
         pinion.     Based upon the issues raised on appeal, we find it
unnecessary to reproduce them in their entirety herein.


*Retired Senior Judge assigned to the Superior Court.
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fleeing and eluding; one count of agricultural vandalism; four counts of

criminal conspiracy; two counts of criminal mischief; two violations of the

Uniform Firearms Act; one count of trespass by motor vehicle; one count of

driving while operating privileges are suspended or revoked; and one count

of reckless driving.2    The charges stemmed from his role in seven home

invasions that occurred between April and August of 2011, and his

subsequent attempt to avoid apprehension by the police. At the sentencing

hearing on December 20, 2013, Weir also pled guilty to attempted escape

and possession of implements of escape based on his possession of a 17-

foot ladder on his person and a 36-foot rope in his jail cell, both made of bed

sheets, while incarcerated and awaiting sentencing on the other charges.3

       The trial court sentenced Weir to an aggregate term of 20 to 54 years

of incarceration.       Weir filed a timely post-sentence motion seeking

modification of his sentence and to withdraw his plea. The trial court denied

the motion on February 18, 2014.

       Weir filed a timely notice of appeal and a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).          He raises two

issues for our review:




2
   18 Pa.C.S.A. §§ 3502(a), 5126(a), 3304(a)(1), 3921(a), 903(a)(1),
3925(a), 5121(a), 6105(a)(1); 75 Pa.C.S.A. § 3717(a), 1543(a), 3736(a).
3
    18 Pa.C.S.A. §§ 901(a), 5122(a)(2).


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         A. Whether the trial court participated in the plea-
            bargaining process such as to render involuntary the
            resulting nolo contendere plea?

         B. Whether the trial court promised leniency to [Weir]
            in consideration of his nolo contendere plea, which
            promise was violated by imposition of an extremely
            harsh prison sentence of 20-54 years?



      As his first issue on appeal, Weir challenges the validity of his plea

                                                                           -



and then failed to follow through on its promise. Id. at 9. The trial court

denies that there is any basis by which to permit Weir to withdraw his plea.

Trial Court Opinion, 3/28/14, at 22.

      For a plea to be considered valid, it must be entered knowingly,

voluntarily and intelligently.   Commonwealth v. Pollard, 832 A.2d 517,

522

and the decision as to whether to allow a defendant to do so is a matter

                                               Id. (citation omitted). To be



demonstrate prejudice on the order of manifest injustice before withdrawal

                Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa.

Super. 2011) (citation omitted).




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injustice   when    it   was   entered    into   involuntarily,   unknowingly,   or

                   Pollard, 832 A.2d at 522.

      The law forbids judges from participating in the plea bargaining

process.    Commonwealth v. Evans

judge who makes a promise as to what his judgment will be in advance of

hearing a case is guilty of judicial misconduct, and allegations of such

misconduct should be clearly proved to warrant the fastening of discredit

                               Commonwealth v. Lynch, 231 A.2d 880, 882

(Pa. Super. 1967).

      The record reflects that on August 28, 2013, the proceeding began



the seven home invasions.       N.T., 8/28/13, at 5.      Prior to beginning jury

selection, the trial court inquired about the status of any plea discussions,

and the Commonwealth indicated that it agreed to withdraw 12 violations of

the Uniform Firearms Act        person not to possess firearms         if Weir pled

guilty. Id. at 5-6. The trial court then informed Weir of the options he had

before him:   a jury trial, a bench trial, a negotiated guilty plea or plea of

nolo contendere (if the Commonwealth would agree to a sentence), or an

open guilty plea or plea of nolo contendere.            Id. at 8-12.    The court

explained that unless he had a negotiated guilty plea, it was within its

                                                     Id. at 9-11. The trial court

informed Weir that if he entered a plea of guilty or nolo contendere, the



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                                            Id. at 11. Weir then accepted the

                                                        with his attorney. Id.

at 12-13.

       After consulting with counsel, Weir stated his intention to enter a plea

of nolo contendere to the charges before the court. Id. at 14. The court

commended him for taking responsibility. Id. at 15. As there was a pool of

jurors present for selection, it also warned Weir against using his plea to

delay matters.      The court stated that if Weir sought to withdraw his plea



                             uld take that into consideration when sentencing

him.   Id. at 15.    The court further stated that Weir might not be able to

withdraw his plea if the Commonwealth could prove that it would be

prejudiced, as some of their witnesses did not live locally. Id. at 15-16.

       The trial court gave the Commonwealth time to prepare the paperwork

                                 nolo contendere plea. Id. at 17. When the

proceeding reconvened, the court engaged in a lengthy colloquy, covering all

required areas,4 to ensur



4
   Pennsylvania Rule of Criminal Procedure 590 requires that a plea be given
on the record in open court for the court to determine whether it is
knowingly, voluntarily and intelligently entered. Pa.R.Crim.P. 590(a). The
comment to Rule 590 indicates that the court must at least make the
following inquiries:



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intelligent.    Id. at 25-71.     In the midst of the colloquy, the trial court




understand that if you do do that, you will not be prejudiced.         In other

words, it will not be held against you that we have gotten this far into the

guilty [sic           Id. at 47. At the conclusion of the colloquy, counsel for

Weir made the following statement on his behalf:

               I believe that my client is making a knowing,
               intelligent, and voluntary decision to plead no
               contest to these charges because, given the totality


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

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

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

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

               (5) Is the defendant aware of the permissible 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?

               (7) Does the defendant understand that the
               Commonwealth has a right to have a jury decide the
               degree of guilt if the defendant pleads guilty to
               murder generally?

Pa.R.Crim.P. 590, Comment.


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            of the evidence, as well as the fact that I believe the
            Commonwealth would be able to show that my client
            told the co-defendants that he would take
            responsibility for the things and to testify against
            him or to put it on him, and also that he then, when
            he met with the police, attempted to take the
            responsibility onto himself, all of which led to a very
            complicated bit of evidence and admissions to the
            police.

            So that with what we have reviewed and believe
            they could prove, as well as what the jury would
            simply take away from that, as well as the fact that
            if my client testified he would be impeached with



            decision to plead nolo to these Informations.

Id. at 72-73.

      Based

that the trial court participated in the plea bargaining process or that it made



would take into account his acceptance of responsibility at sentencing does

not amount to a promise that he would receive a lighter sentence. Rather, a



trial courts routinely takes into account when sentencing a defendant who

pled guilty or nolo contendere. See, e.g., Commonwealth v. Bowen, 55

A.3d 1254, 1264-65 (Pa. Super. 2012) (trial court considered mitigating

circumstances when sentencing the defendant including, inter alia, the

                                  nsibility), appeal denied, 64 A.3d 630 (Pa.




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2013); Commonwealth v. Curran, 932 A.2d 103, 105, 107 (Pa. Super.

2007) (sentence outside of the guidelines was appropriate despite the fact



acknowledged her involvement in the offense, [and] accepted responsibility

for                            cf. Commonwealth v. Miller, 965 A.2d 276,



accept responsibility for his actions when sentencing the defendant).

Indeed, in Commonwealth v. Burton, 251 A.2d 731 (Pa. Super. 1969) (en

banc) (per curiam), this Court upheld a guilty plea where the trial court told

the defendant that he would receive a lighter sentence if he pled guilty. Id.

at 731-32.

                                                                         es not



withdraw his plea. Pollard, 832 A.2d at 522. There is nothing in the record



unintelligently. We therefore conclude that the trial court did not abuse its

                                                             nolo contendere.

      As his second issue on appeal, Weir asserts that the trial court failed to



at 11-12. As we have found that the trial court made no such promise, this

issue is likewise without merit.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/1/2014




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