J-A07022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GARY DWAYNE WEYANT

                            Appellant              No. 516 WDA 2014


            Appeal from the Judgment of Sentence March 28, 2014
               In the Court of Common Pleas of Bedford County
             Criminal Division at No(s): CP-05-CR-0000115-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                         FILED APRIL 29, 2015

        Gary Dwayne Weyant appeals from the judgment of sentence imposed

by the Court of Common Pleas of Bedford County, following his conviction for

rape of a child.1 Upon review, we affirm.

        On February 26, 2014, Weyant entered a no contest plea to one count

of rape of a child in exchange for sentence of three to six years in a state

prison. The court sentenced Weyant immediately following the plea hearing.

Thereafter, Weyant hired new counsel and filed post-sentence motions,

seeking to vacate the sentence and plea agreement. Following a hearing on

March 24, 2014, the trial court denied Weyant’s post-sentence motions.

This timely appeal followed.

____________________________________________


1
    18 Pa.C.S. § 3121(c).
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      On appeal, Weyant presents a single issue for our review:          whether

the lower court abused its discretion in denying his motion to withdraw the

no contest plea. Brief of Appellant, at 4. Our review of a defendant’s post-

sentence challenge to a guilty plea is well established.

      Post-sentence motions for withdrawal are subject to higher
      scrutiny since courts strive to discourage entry of guilty pleas as
      sentence-testing devices. A defendant must demonstrate that
      manifest injustice would result if the court were to deny his post-
      sentence motion to withdraw a guilty plea. Manifest injustice
      may be established if the plea was not tendered knowingly,
      intelligently, and voluntarily. In determining whether a plea is
      valid, the court must examine the totality of circumstances
      surrounding the plea. A deficient plea does not per se establish
      prejudice on the order of manifest injustice.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009)

(internal quotes and citations omitted). Furthermore,

      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. 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) (citations

omitted).



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         Our review of the transcript from the plea hearing reveals ample

support for the trial court’s conclusion that Weyant entered a knowing,

voluntary, and intelligent plea.   Prior to the hearing, Weyant completed a

written colloquy, which the Honorable Travis W. Livengood reviewed in open

court.     Thereafter, the court performed its own extensive oral colloquy.

During the oral colloquy, the court explained the nature of the charge of

rape of a child, that Weyant was giving up his right to trial by jury, the

permissible ranges of sentences and fines possible, and that the court is not

bound by the terms of the agreement unless the court accepts the plea. Id.

         In his brief, Weyant claims that some of his responses during the

colloquy demonstrate that he did not comprehend the proceedings.

However, this contradicts the statements Weyant made to the court, under

oath, indicating that he understood his attorney and the questions asked by

the court.     See N.T. Plea Hearing, 2/26/14, at 15-33.     Furthermore, the

hearing transcript reveals that the court adequately addressed all points of

confusion and made sure Weyant understood the consequences of his

decision to plead no contest. Looking at the totality of the circumstances,

we conclude that the colloquy was more than adequate and Weyant’s plea

was knowing, voluntary, and intelligent. Id.

         In support of his claim that his plea was invalid, Weyant also argues

that the court rushed him to enter his no contest plea, asserting that Judge

Livengood imposed an arbitrary deadline of 1:30 P.M. However, nothing in

the record indicates that Judge Livengood, or Weyant’s trial counsel, stated

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that Weyant was required to enter a no contest plea at that time. Rather,

Judge Livengood merely wanted Weyant to make a decision by 1:30 P.M.

Weyant had an opportunity to meet with his attorneys prior to the hearing

for several hours, during which he discussed all of his options with counsel.

N.T. Plea Hearing, 2/26/14, at 2-3; 27.       Furthermore, Weyant did not

indicate during his plea colloquy that he wanted more time or information.

Accordingly, we find this argument to be meritless.

      Lastly, Weyant argues that the trial court abused its discretion when it

decided to proceed with the post-sentence motion hearing even though it

failed to provide Weyant’s new attorney with a transcript of the plea and

sentencing hearing.   Weyant believes his counsel was placed at a “distinct

disadvantage” without the transcript, which caused Weyant to suffer a

manifest injustice. Weyant relies on Commonwealth v. Payson, 723 A.2d

695 (Pa. Super. 1999), in support of his argument; however, he merely cites

dicta concerning the importance of obtaining transcripts prior to filing a

concise statement of errors complained of on appeal. Id. at 705. Because

Weyant failed to provide any legal authority or demonstrate that he suffered

a manifest injustice, we find this argument meritless.

      Judgment of sentence affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2015




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