J-S50030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

 JERMAINE DAVIS

                             Appellant                  No. 1237 EDA 2017


           Appeal from the Judgment of Sentence February 27, 2017
            In the Court of Common Pleas of Northampton County
             Criminal Division at No(s): CP-48-CR-0003675-2016


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY MOULTON, J.:                         FILED DECEMBER 15, 2017

       Jermaine Davis appeals from the February 27, 2017 judgment of

sentence1 entered in the Northampton County Court of Common Pleas. We

affirm.

       The trial court set forth the history of this case as follows:

           1. This matter was originally assigned to the Honorable F.P.
           Kimberly McFadden on January 13, 2017, following [Davis’]
           arraignment.


____________________________________________


       1While Davis purports to appeal the trial court’s March 7, 2017 order
denying his post-sentence motion to withdraw guilty plea, the appeal properly
lies from the judgment of sentence. See Commonwealth v. W.H.M., Jr.,
932 A.2d 155, 158 n.1 (Pa.Super. 2007) (“An appeal from an order denying a
post-trial motion is procedurally improper because a direct appeal in a
criminal proceeding lies from the judgment of sentence.”).
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            2. [Davis] was charged at term number 3675-2016 with
            possession with intent to deliver heroin and possession with
            intent to deliver cocaine.[2] At term number 3320-2016,
            [Davis] was charged with delivery of heroin and criminal use
            of communication facility.[3] Attorney Alexander Karam was
            appointed to represent [Davis].

            3. On February 10, 2017, [Davis] appeared before the Court
            for a pre-trial conference, during which a negotiated plea
            was discussed. [Davis] requested one week to consider the
            plea offer, and the matter was re-scheduled for another pre-
            trial conference on February 17, 2017.

            4. At the February 17, 2017 conference, [Davis] requested
            a new public defender, which was denied.

            5. [Davis] stated that he wished to proceed with trial, which
            was scheduled to begin on February 27, 2017.

            6. On February 27, 2017, [Davis] again appeared before the
            Court, and the Court began the process of requesting a jury
            pool to begin [Davis’] trial. However, [Davis] requested to
            re-open plea negotiations with the Commonwealth prior to
            the start of trial proceedings.

            7. After approximately two hours of conferring with counsel
            and negotiating with the Assistant District Attorney
            [(“ADA”)], a plea agreement was reached wherein [Davis]
            would plead guilty to one count of possession of heroin with
            intent to deliver, less than one gram, and all remaining
            charges would be withdrawn.

            8. [Davis] entered into the negotiated plea before the
            undersigned and was sentenced to 18 to 36 months, which
            was the agreed upon sentence, and which was a mitigated
            sentence in light of [Davis’] prior record score of five.1
                  1The standard range for possession of heroin
                  with intent to deliver, with a prior record score
                  of five, would be 21 to 27 months.


____________________________________________


       2   35 P.S. § 780-113(a)(30).

       3   35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 7512(a), respectively.

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           9. On March 1, 2017, [Davis] wrote to the undersigned
           requesting to withdraw his guilty plea. Mr. Karam was
           directed to file a formal motion on [Davis’] behalf, which
           was filed on March 2, 2017. A hearing on the Motion to
           Withdraw Guilty Plea was held on March 6, 2017.

Trial Ct. Op., 3/7/17, at 1-2.

       On March 7, 2017, the trial court denied Davis’ post-sentence motion to

withdraw his guilty plea. On March 21, 2017, Davis timely filed a notice of

appeal.

       Davis raises the following issue on appeal: “Whether the Trial Court

erred and abused its discretion in denying [Davis’] Post-Sentence Motion to

Withdraw Guilty Plea despite the fact [that Davis’] plea was not knowingly,

intelligently, voluntarily, or understandingly entered due to his mental state

and lack of sleep causing manifest injustice[.]” Davis’ Br. at 3.

       We review a trial court’s decision to grant or deny a petitioner’s motion

to withdraw guilty plea for an abuse of discretion. Commonwealth v. Hart,

___ A.3d ____, 2017 PA Super 355, *4 (filed November 13, 2017).

       This Court recently discussed the standard for a post-sentence

withdrawal of a guilty plea:

           [A]fter the court has imposed a sentence, a defendant can
           withdraw his guilty plea “only where necessary to correct a
           manifest injustice.” Commonwealth v. Starr, 450 Pa.
           485, 301 A.2d 592, 595 (1973). “[P]ost-sentence motions
           for withdrawal are subject to higher scrutiny [than pre-
           sentence motions to withdraw4] since courts strive to
____________________________________________


       4When a petitioner seeks to withdraw his guilty plea prior to the
imposition of a sentence “the court may, in its discretion, permit, . . .



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          discourage the entry of guilty pleas as sentencing-testing
          devices.” Commonwealth v. Kelly, 5 A.3d 370, 377
          (Pa.Super. 2010), appeal denied, 613 Pa. 643, 32 A.3d
          1276 (2011).

                                           ...

             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, 565
          Pa. 79, 771 A.2d 767, 771 (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

____________________________________________


the withdrawal of a plea of guilty or nolo contendere and the substitution of
a plea of not guilty.” Pa.R.Crim.P. 591(A). We have further explained that
“[i]f 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.’” Commonwealth v. Islas, 156 A.3d
1185, 1188 (Pa.Super. 2017) (quoting Commonwealth v. Forbes, 299 A.2d
268, 271 (Pa. 1973)).

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             defendant bears       the   burden   of   proving   otherwise.
             Pollard, supra.

Commonwealth v. Kpou, 153 A.3d 1020, 1023-24 (Pa.Super. 2016).

       Davis claims that “his plea was not knowingly, intelligently, voluntarily

or understandingly entered” because at the time he entered his guilty plea he

was not “in the right state of mind due to his mental state and lack of sleep.”

Davis’ Br. at 7. He contends that “he was under the impression he was going

to trial.”    Id.   Davis further claims that the record is devoid of evidence

showing that Commonwealth would be prejudiced had his motion been

granted.

       The trial court found:

             11. Here, the record is clear that [Davis] entered into a
             negotiated guilty plea and received the negotiated sentence.
             He stated that he signed the information for term number
             3675-2016.2 N.T. 2/27/17 at 2. [Davis] executed both the
             guilty plea statement and post-sentencing colloquy, with the
             assistance of counsel, and stated that he understood all of
             the questions therein. Id. at 2-3, 7. [Davis] stated that he
             understood what he was doing despite taking medication.[5]
____________________________________________


       5   The following exchange occurred during the oral guilty plea colloquy:

             THE COURT:     . . . Are you currently taking medications for
             any reason?

             MR. DAVIS:     Yes.

             THE COURT:     What is your medication?

             MR. DAVIS:     Seroquel.

             THE COURT:     Okay. Just Seroquel?




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           Id. The Court reviewed [Davis’] rights with him, including
           his presumption of innocence, right to trial by jury, right to
           question or present witnesses, and the right to testify or not
           to testify at trial. [Davis] stated that he wanted to give
           those rights up and wanted to plead guilty.[6] Id. at 3-5.
           [Davis] further stated that he was satisfied with Mr. Karam’s
           representation. Id. at 5.
                 2 Misidentified in the transcript as 3673-2016.
                 All charges at term number 3320-2016 were
____________________________________________


           MR. DAVIS:       Just Seroquel right now.

           THE COURT: Does it in any way affect your ability to
           understand what we are doing here today?

           MR. DAVIS:       Um-um.

           THE COURT:       You understand?

           MR. DAVIS:       Yeah.

           THE COURT: Okay. And I also have a post-sentencing
           colloquy, which I assume that Mr. Karam went over with
           you?

           MR. DAVIS:       Yes.

           THE COURT:       Did you understand it?

           MR. DAVIS:       Yeah.

N.T., 2/27/17, at 2-3.

       6 More specifically, in Davis’ written guilty plea colloquy, he answered
“Y” to the question: “Do you understand that by pleading guilty, you give up
your right to a trial, either by a jury or before a Judge?” Guilty Plea Stmt.
(Colloquy), 2/27/17, ¶ 24. Further, during the oral guilty plea colloquy, the
trial court asked Davis: “Do you understand you have a right to have your
case tried by a judge alone or by a jury . . . ? Davis responded, “Yes.” The
trial court then asked: You are giving all those rights up today. Is that what
you want to do?” Davis responded, “Yeah.” The trial court further asked
“You’re sure this is what you want to do?” Davis again responded, “Yeah.”
N.T., 2/27/17, at 4-5.

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                withdrawn in accordance with the terms of the
                negotiated plea.

        12. A sufficient factual basis for the plea was also placed on
        the record by [ADA] Thompson, including that, based upon
        the number of packets of heroin in [Davis’] possession, the
        Commonwealth could present witnesses to testify that the
        amount was more than would be possessed for personal
        use. Id. at 6. [Davis] stated that he understood the factual
        basis for his plea. Id. at 5. [Davis] further stated that by
        entering the plea, he understood he would be waiving future
        claims. Id. at 8.

        13. Based on the foregoing, it is clear that [Davis’] guilty
        plea was entered both knowingly and voluntarily, and there
        has been no showing of manifest injustice such as to permit
        [Davis] to withdraw his guilty plea[] following sentencing.

Trial Ct. Op., 3/7/17, 3-4. We agree.

     Further,    we   note   that   whether   the   Commonwealth    has   been

substantially prejudiced is a factor in the standard for pre-sentence motions

to withdraw guilty plea, not post-sentence motions to withdraw. Compare

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015) (stating

that pre-sentence motions to withdraw guilty plea should be liberally allowed

when petitioner provides fair and just reason and Commonwealth has not been

substantially prejudiced); Commonwealth v. Baez, 169 A.3d 35, 39

(Pa.Super. 2017) (same); Islas, 156 A.3d at 1188 (same); Commonwealth

v. Elia, 83 A.3d 254, 261 (Pa.Super. 2013) (same), with Hart, 2017 PA Super

355 at *4 (stating that after imposition of sentence, trial court may grant

motion to withdraw guilty plea only to correct a manifest injustice); Kpou,

153 A.3d at 1023-24 (same); Commonwealth v. Broaden, 980 A.2d 124,




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129 (Pa.Super. 2009) (same); Commonwealth v. Flick, 802 A.2d 620, 623

(Pa.Super. 2002) (same).

     Accordingly, we conclude that the trial court did not abuse its discretion

in denying Davis’ post-sentence motion to withdraw guilty plea. See Kpou,

153 A.3d at 1023-24.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/17




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