J-A08011-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    ROBERT LINCOLN

                             Appellant               No. 3632 EDA 2003


            Appeal from the Judgment of Sentence October 27, 2003
              In the Court of Common Pleas of Philadelphia County
                 Criminal Division at No(s): CP# 0305-0501 1/1


BEFORE: GANTMAN, J., ALLEN, J., and OTT, J.

MEMORANDUM BY GANTMAN, J.:                        FILED OCTOBER 18, 2017

        Appellant, Robert Lincoln, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas, following

his negotiated guilty plea to attempted murder, aggravated assault, and

robbery.1 We affirm.

        A prior memorandum decision of this Court sets forth the relevant facts

of this case as follows:

           In November, 2002, [A]ppellant savagely beat a woman in
           whose home he was a guest, stole the proceeds of her social
           security checks, and left the victim and her two severely
           retarded children to fend for themselves. Unable to reach
           his sister by telephone, the victim’s brother came to the
           victim’s home, discovered her lying in a pool of blood, and
           her children sitting in a pile of their own feces.

____________________________________________


1   18 Pa.C.S.A. §§ 901 (2501 related), 2702, and 3701, respectively.
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Commonwealth v. Lincoln, No. 2746 EDA 2005, unpublished memorandum

at 1 (Pa.Super. filed June 19, 2006). Appellant provided the Commonwealth

with a signed confession.         The victim was hospitalized for a month and

endured seven surgeries including one to treat an open skull fracture and

another for permanent removal of her badly damaged left eye. When the

victim was well enough, she identified Appellant as her assailant. The victim

said Appellant had used his fists and a radio to beat her to near death. A

previous trial court opinion continued as follows:

          On October 27, 2003, following a guilty plea colloquy,
          [Appellant] entered a negotiated plea of guilty to Robbery,
          Aggravated Assault, and Attempted Murder. This [c]ourt
          sentenced [Appellant] to sixteen (16) to forty (40) years for
          Attempted Murder and twenty (20) years[’] probation for
          Robbery, to be served consecutive to the prison term. The
          sentence for Aggravated Assault merged with Attempted
          Murder for sentencing purposes. All other charges were
          nolle prosequi.

          On November 23, 2003, [Appellant] filed a Notice of Appeal.
          On January 5, 2004, the appeal was withdrawn.           On
          February 6, 2004, [Appellant] filed a Post Conviction Relief
          Act (“PCRA”) Petition. Counsel was appointed,[2] and on
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2  On May 26, 2005, counsel filed a “no merit” letter pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), stating that the
issues in Appellant’s pro se PCRA petition were without merit and counsel
found no other meritorious issues to raise. In that petition, counsel reviewed
and rejected the following claims: (1) whether counsel was ineffective for
failing to file a motion to suppress as tainted complainant’s identification that
formed the basis for Appellant’s arrest because the detectives investigating
the case gave complainant a photo array of extra-large pictures due to
complainant’s eye injury; (2) whether counsel was ineffective at the
preliminary hearing for failing to file a motion to quash the transcript because
complainant did not make an identification at the hearing (Appellant raised



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          August 25, 2005, the Petition was dismissed….            On
          September 9, 2005, [Appellant] filed a pro se Notice of
          Appeal. On June 19, 2006, the Pennsylvania Superior Court
          affirmed the [PCRA] court. On July 31, 2006, [Appellant]
          filed a Petition for Allowance of Appeal to the Pennsylvania
          Supreme Court. On January 4, 2007, the Supreme Court
          denied [Appellant’s] petition.

(Trial Court Opinion, filed September 25, 2012, at 1).        Appellant sought

habeas corpus relief in the federal court. On August 24, 2011, the United

States Court for the Eastern District of Pennsylvania granted Appellant a

conditional writ of habeas corpus, concluding Appellant had been denied

effective assistance of counsel on direct appeal, solely because Appellant’s

counsel had discontinued the direct appeal without consulting Appellant. The

writ stated Appellant would be released from custody unless the state

appellate court reinstated his direct appeal rights nunc pro tunc within 180

days. Nothing in the writ referred to the reinstatement of Appellant’s post-

sentence motion rights, and Appellant did not ask for that relief.

       Instead, on October 17, 2011, Appellant filed an application to reinstate

his direct appeal nunc pro tunc, which this Court granted on December 9,

2011. The trial court ordered Appellant on July 10, 2012, to file a statement

of errors complained of on appeal, pursuant to Pa.R.A.P 1925(b); and


____________________________________________


this claim notwithstanding the record stipulation, made for purposes of the
preliminary hearing only, that Appellant was the person the victim had
identified as her assailant, Robert); (3) whether prior counsel was ineffective
generally; (4) whether Appellant’s plea was knowing, intelligent, and
voluntary; (5) whether prior counsel was ineffective for failing to file a motion
to withdraw the guilty plea.

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Appellant complied on August 21, 2012.

      In Appellant’s first reinstated direct appeal, we concluded Appellant’s

challenge to the validity of his plea was procedurally waived because he failed

to move to withdraw the plea during the plea process or file a post-sentence

motion to withdraw the plea. See Commonwealth v. Lincoln, 72 A.3d 606

(Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014).          This

Court specifically advised Appellant to file a PCRA petition under the rubric of

ineffective assistance of counsel if he wished to seek a merits review of his

new and more specific issues regarding the validity of his plea. On February

27, 2014, our Supreme Court denied Appellant’s petition for allowance of

appeal.

      Instead of filing the PCRA petition as directed, Appellant returned to

federal court, where he argued the district court’s 2011 order had required

this Court to address, on the merits, Appellant’s challenges to the validity of

his guilty plea.   The federal district court agreed and, on April 2, 2014, it

entered an order granting Appellant a conditional writ of habeas corpus,

vacating his conviction and sentence, and releasing him from custody, unless

within ninety (90) days of that court’s order, Appellant’s state direct appeal

was again reinstated nunc pro tunc for review on the merits of his specific

claims

      On April 4, 2014, Appellant filed with this Court an emergency

application for reinstatement of his second direct appeal nunc pro tunc. The


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Commonwealth opposed Appellant’s application in this Court while the

Commonwealth appealed the federal district court’s April 2, 2014 order to the

Third Circuit Court of Appeals. On June 30, 2014, this Court stayed Appellant’s

application for reinstatement, pending resolution of the federal appeal, and

directed the parties to apprise this Court of the federal appellate court decision

immediately upon its filing. The federal district court’s April 2nd order was also

stayed pending the federal appeal. The Third Circuit Court of Appeals affirmed

the district court’s order on December 12, 2014, and inexplicably directed the

Commonwealth to reinstate Appellant’s second direct appeal nunc pro tunc

by December 25, 2014.3

       On December 15, 2014, the Commonwealth withdrew its opposition to

Appellant’s April 4, 2014 emergency application for reinstatement of his

second direct appeal nunc pro tunc.            At the Commonwealth’s request, the

Court of Common Pleas reinstated Appellant’s direct appeal rights nunc pro



____________________________________________


3 During the second round of federal court proceedings, the case suggests the
Commonwealth waived any objection to Appellant’s failure to exhaust state
statutory remedies under the PCRA, which he should have done, and as we
had instructed, before again going to federal court for habeas corpus relief.
See generally 28 U.S.C.A. § 2254 (providing: “(b)(1) An application for a
writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears that─(A) the
applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or (ii)
circumstances exist that render such process ineffective to protect the rights
of the applicant”). We are, however, unable to confirm any waiver and can
only presume it because the federal court accepted and reviewed Appellant’s
second application for habeas corpus relief.

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tunc on December 22, 2014. On December 30, 2014, Appellant went back to

federal court demanding release from prison because the Commonwealth had

purportedly failed to reinstate Appellant’s direct appeal in the Superior Court.

Appellant had the duty to move to lift the stay in effect, but this Court lifted

its June 30, 2014 stay on Appellant’s emergency application for reinstatement

of his second direct appeal nunc pro tunc and resuscitated his direct appeal

for disposition on the merits.

      Notwithstanding the reinstatement, Appellant yet again sought federal

court relief based on the Commonwealth’s purported non-compliance with the

Third Circuit Court of Appeals’ December 12, 2014 order and this Court’s

purported untimely reinstatement of his direct appeal on January 5, 2015.

The federal district court issued Appellant a writ of execution of habeas corpus

on March 23, 2015, mandating Appellant’s release, but stayed the writ

indefinitely until the Third Circuit Court of Appeals decided whether its

December 12, 2014 mandate superseded this Court’s June 30, 2014 stay

order.

      On January 6, 2016, the Third Circuit Court of Appeals vacated the

federal district court’s March 23, 2015 writ of execution, which had been

stayed pending the federal appeal, and the case was returned to this Court

for direct appellate review on the merits. Meanwhile, pursuant to this Court’s

order, the Commonwealth filed a substituted brief to address Appellant’s

claims on the merits; Appellant subsequently filed a reply brief.


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      As a significant prefatory matter, a substantial delay has occurred in the

resolution of this appeal, largely due to Appellant’s numerous federal court

petitions and counsel’s dissatisfaction with state process, as well as an

incomplete certified record.      We observe that Appellant’s counsel is

responsible to review the certified record on appeal, to identify and obtain any

missing documents, and to provide the appellate court with a complete

certified record. See, e.g., Commonwealth v. Bongiorno, 905 A.2d 998

(Pa.Super. 2006) (en banc), appeal denied, 591 Pa. 688, 917 A.2d 844 (2007)

(stating: Pennsylvania “law is unequivocal that the responsibility rests upon

the appellant to ensure that the record certified on appeal is complete in the

sense that it contains all of the materials necessary for the reviewing court to

perform its duty. … Under [Pa.R.A.P.] 1926, an appellate court may direct

that an omission or misstatement shall be corrected through the filing of a

supplemental certified record. However, this does not alter the fact that the

ultimate responsibility of ensuring that the transmitted record is complete

rests squarely upon the appellant and not upon the appellate courts”). Yet,

despite this Court’s orders, and other informal requests to Appellant’s present

and prior counsel, and the trial court, Appellant’s current counsel declined to

take the matter seriously or show any initiative to locate and provide us with

a certified copy of Appellant’s written plea colloquy. Instead, counsel simply

denied “possession” of the document and declined to cooperate, as if our

orders and inquiries were just invitations. At this point, therefore, we will


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proceed without the written colloquy.4

       Appellant raises three substantive claims for our review:

          DID THE TRIAL COURT ERR WHEN, DURING THE PLEA
          COLLOQUY, IT MISINFORMED [APPELLANT] OF THE
          CORRECT MAXIMUM SENTENCE FOR THE OFFENSES HE
          FACED, OVERSTATING THE MAXIMUM BY 20 YEARS,
          THEREBY VIOLATING PENNSYLVANIA RULE OF CRIMINAL
          PROCEDURE 590 AND THE UNITED STATES CONSTITUTION
          AND CAUSING THE PLEA TO HAVE BEEN MADE
          UNKNOWINGLY AND INVOLUNTARILY IN VIOLATION OF
          THAT RULE AND THE CONSTITUTION?

          DID THE TRIAL COURT ERR WHEN IT ENTERED A GUILTY
          PLEA ON THE CHARGES OF ATTEMPTED MURDER, DESPITE
          (I) [APPELLANT’S] DENIAL OF A FACT CRUCIAL TO ONE OF
          THE NECESSARY ELEMENTS OF THE OFFENSE AND (II) THE
          SUBMISSION OF FACTS ESTABLISHING AN AFFIRMATIVE
          DEFENSE TO THAT OFFENSE, THEREBY VIOLATING
          PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 590 AND
          THE UNITED STATES CONSTITUTION AND CAUSING THE
          PLEA TO HAVE BEEN MADE UNKNOWINGLY AND
          INVOLUNTARILY IN VIOLATION OF THAT RULE AND THE
          CONSTITUTION?

          DID THE TRIAL COURT ERR WHEN IT ENTERED A GUILTY
          PLEA WITHOUT INFORMING [APPELLANT] OF THE
          ELEMENTS OF THE OFFENSES OR OTHERWISE ENSURING
          THAT [APPELLANT] WAS SUFFICIENTLY AWARE OF THE
          NATURE OF THE OFFENSES, THEREBY VIOLATING
          PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 590 AND
          THE UNITED STATES CONSTITUTION AND CAUSING THE
          PLEA TO HAVE BEEN MADE UNKNOWINGLY AND
          INVOLUNTARILY IN VIOLATION OF THAT RULE AND THE
          CONSTITUTION?

(Appellant’s Brief at 4).



____________________________________________


4Any waiver that could result on this basis would fall squarely on Appellant’s
current counsel for failure to comply with this Court’s directives.

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      We outline Appellant’s issues together because they challenge the

validity of his guilty plea. Appellant’s principal complaint is that the trial court,

during the plea hearing, “repeatedly” misstated the potential maximum

sentence Appellant was facing as a total maximum sentence of eighty-five

(85) years’ incarceration. Appellant claims the court essentially “threatened”

him with a de facto life sentence, under the court’s mistaken belief that the

offenses of aggravated assault and attempted murder could support

consecutive sentences. Appellant complains the court failed to consider the

merger of aggravated assault and attempted murder, which actually made the

maximum possible sentence only sixty-five (65) years’ incarceration.

Appellant asserts the court did nothing to inform him of the correct maximum

sentence before his plea or confirm Appellant wanted to proceed with the plea

before sentencing in light of the corrected maximum stated during sentencing.

Appellant insists this error so “tainted” his plea process that he should be

permitted to withdraw his plea.

      Next, Appellant says that, even if the court had correctly informed him

of the true possible maximum sentence, the court erred in two other important

respects, which also call the validity of the plea into question. First, Appellant

contends the court failed to verify a proper factual basis for the charge of

attempted murder. Appellant insists he had to admit he used the radio to

strike the victim in order to plead guilty to attempted murder; but at the guilty

plea hearing, he denied using the radio to beat the victim; Appellant claims


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his denial of this fact defeats any specific intent to kill. Appellant submits the

stipulated facts established only that Appellant struck the victim because she

had assaulted him, which represents a foundation for attempted manslaughter

only.    Appellant complains the court should have rejected his plea to

attempted murder because the plea lacked a stipulated factual basis and

instead raised an affirmative defense.

        Under the second alternative basis, Appellant asserts his guilty plea was

unknowing, unintelligent, and involuntary because the trial court did not

describe the elements of attempted murder and robbery. Appellant claims the

court could have, but did not: (1) state on the record the elements of the

offenses or (2) ensure by a totality of the circumstances that Appellant

understood those elements. Appellant concludes these claims individually and

collectively demonstrate such a manifest injustice that he should be allowed

to withdraw his plea and have the judgment of sentence vacated.

        In   response,   the   Commonwealth     asserts   Appellant’s   particular

challenges to his oral plea colloquy warrant no relief because: (1) repeated

previous holdings in his case have declared his guilty plea was knowing,

intelligent, and voluntary; (2) the trial court’s failure to discuss the merger of

the offenses of aggravated assault and attempted murder for sentencing

purposes was unnecessary because the court was not required to “discuss”

the merger doctrine after accurately stating the “potential” statutory

maximum penalties for the offenses and, more importantly, the court did


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review merger before concluding the plea hearing and sentencing; (3)

Appellant did not dispute that he attacked the victim, there was evidence to

submit to a jury that Appellant did use a radio as a weapon, and there was

ample additional record evidence to support the charges, even without using

a weapon; (4) the court’s failure to list the elements of the offenses during

Appellant’s oral colloquy is mollified under the totality of the circumstances by

the use of a written guilty plea colloquy; (5) the most relief Appellant could

permissibly obtain would be a remand to develop the record on the

voluntariness of his plea. The Commonwealth submits the ultimate question

before this Court is whether, under the totality of the circumstances, Appellant

entered a valid and enforceable plea. The Commonwealth notes that, absent

evidence of the content of Appellant’s written guilty plea colloquy, discussions

with counsel, and other independent details, none of which Appellant has

provided, this Court has no reason to vacate Appellant’s judgment of

sentence. We agree with the Commonwealth’s contentions.

      Appellate review in this case implicates the following legal principles.

When a defendant enters a guilty plea, he waives the right to “challenge on

appeal all non-jurisdictional defects except the legality of [the] sentence and

the validity of [the] plea.” Commonwealth v. Luketic, 162 A.3d 1149, 1159

(Pa.Super. 2017).    A valid guilty plea must be knowingly, voluntarily and

intelligently entered.   Commonwealth v. Pollard, 832 A.2d 517, 522

(Pa.Super. 2003).    The Pennsylvania Rules of Criminal Procedure mandate


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that 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

(Pa.Super. 2002) (citing Pa.R.Crim.P. 590).       Specifically, the court must

confirm the defendant understands: (1) the nature of the charges to which he

is pleading guilty; (2) the factual basis for the plea; (3) his right to trial by

jury; (4) the presumption of innocence; (5) the permissible ranges of

sentences and fines possible; and (6) the judge is not bound by the terms of

the agreement unless he accepts the agreement.           See Pa.R.Crim.P. 590

Comment; Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003).

      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. Pollard, supra at 523. Regardless of the reason for entering a

guilty plea, a defendant who decides to plead guilty is bound by the

statements he makes while under oath, “and he may not later assert grounds

for withdrawing the plea which contradict the statements he made at his plea

colloquy.” Id. “[A] defendant who attempts to withdraw a guilty plea after

sentencing must demonstrate prejudice on the order of manifest injustice

before withdrawal is justified.”   Commonwealth v. Pantalion, 957 A.2d

1267, 1271 (Pa.Super. 2008). “A plea rises to the level of manifest injustice

when it was entered into involuntarily, unknowingly, or unintelligently.” Id.




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(quoting Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.Super.

2002)).

      On appeal, this Court evaluates the adequacy of the plea colloquy and

the voluntariness of the resulting plea by looking at the totality of the

circumstances surrounding the entry of the plea. Id. at 383-84. Even with

omissions or defects in the oral guilty plea colloquy, a guilty plea will be

deemed valid if the totality of the circumstances surrounding the plea shows

the defendant had a full understanding of the nature and consequences of his

plea and entered the plea of his own accord. Commonwealth v. Fluharty,

632 A.2d 312, 315 (Pa.Super. 1993). Historically, the term “totality of the

circumstances” includes consideration of attendant circumstances and does

not focus solely on direct instruction by the court.      Commonwealth v.

Anthony, 504 Pa. 551, 475 A.2d 1303 (1984). A defendant’s knowledge and

understanding of the charges against him are not tested solely by reference

to the on-the-record plea colloquy.    Commonwealth v. Schultz, 505 Pa.

188, 192, 477 A.2d 1328, 1330 (1984) (recognizing abrogation of per se

approach to analyzing validity of guilty plea by limiting review solely to oral

plea colloquy). See also Commonwealth v. Eichinger, 631 Pa. 138, 155-

56, 108 A.3d 821, 832 (2014) (quoting Commonwealth v. Yeomans, 24

A.3d 1044, 1047 (Pa.Super. 2011)) (stating: “Even though there is an

omission or defect in the guilty plea colloquy, a plea of guilty will not be

deemed invalid if the circumstances surrounding the entry of the plea disclose


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that the defendant had a full understanding of the nature and consequences

of his plea and that he knowingly and voluntarily decided to enter the plea”).

Under Pennsylvania law, the reviewing court is free to consider a wide array

of relevant evidence in addition to the transcript of the actual plea colloquy,

under the totality-of-the-circumstances standard, to determine the validity of

a claim and plea agreement including, but not limited to, transcripts from

other proceedings, off-the-record communications with counsel, and written

plea agreements. Commonwealth v. Allen, 557 Pa. 135, 147, 732 A.2d

582, 589 (1999). See, e.g., Fluharty, supra (allowing reference to affidavit

of probable cause as substitute for formal recitation of factual basis for plea).

      With regard to the trial court’s overstating the potential maximum

sentence during the guilty plea process, we observe:

         Under certain circumstances, a defendant who enters a
         guilty plea after the court communicates an incorrect
         maximum sentence may be considered to have entered
         [his] plea unknowingly and involuntarily. Commonwealth
         v. Lenhoff, 796 A.2d 338 (Pa.Super. 2002). However,
         “every mistake in computing the possible maximum or
         advising the defendant of the possible maximum will [not]
         amount to manifest injustice justifying the withdrawal of a
         guilty plea; the mistake must be material to the
         defendant’s decision to plead guilty.” Commonwealth v.
         Barbosa, 819 A.2d 81, 83 (Pa.Super. 2003).

Commonwealth v. Pantalion, 957 A.2d 1267, 1271-72 (Pa.Super. 2008)

(emphasis added). As this Court explained in Barbosa:

         This determination [of materiality] must be fact- and case-
         specific. Certainly, if a defendant were to plead guilty to
         avoid a death sentence when there is no possibility of a
         death sentence, then this mistake would clearly be material.

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        On the other hand, suppose…the defendant [was] told that
        he faced a maximum sentence of 70 to 140 years rather
        than 65 to 130 years. If the plea negotiations resulted in a
        sentence of 5 to 10 years, then this mistake would not be
        material.

Barbosa, supra at 83 (citing these extreme examples for comparison). For

example, if a defendant enters a guilty plea and justifiably believes the

maximum sentence is actually less than what he could legally receive, he may

not withdraw that plea unless he receives a sentence greater than what he

was told. Commonwealth v. Warren, 84 A.3d 1092, 1096 (Pa.Super. 2014)

(quoting Barbosa, supra at 82). See also Commonwealth v. Carter, 540

Pa. 135, 142, 656 A.2d 463, 466 (1995) (holding defendant facing multiple

burglary and related offenses could not undo his plea, even though he did not

know court could impose consecutive sentences, where defendant’s aggregate

sentence was less than maximum sentence he could have legally received on

single burglary count; defendant was not sentenced to term that exceeded his

expectations). On the other hand, we have directed the withdrawal of pleas

if the defendant was justifiably unaware of or misled about the “compared to

what” of the maximum sentence.              Barbosa, supra at 83.        See

Commonwealth v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992) (holding

where defendant was informed of maximum sentence on each count but was

not informed that his sentences could be imposed consecutively, and he

received a sentence that was legal but higher than he thought possible,

defendant was entitled to withdraw his plea); Lenhoff, supra (vacating guilty


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plea, where defendant entered plea to avoid sentence for second degree

felony as charged, but his offense should have been graded as third degree

felony; plea negotiations were deemed fatally flawed); Hodges, supra

(holding where double murder defendant was fifteen years old at time of

offenses and entered guilty plea specifically to avoid death penalty, but death

penalty could not be legally imposed, defendant’s plea was tainted and

constituted manifest injustice). Significantly, these cases have one common,

unmistakable theme, i.e., they all depended on the specific facts and

circumstances of the case and definitely were not subject to a “per se”

manifest injustice analysis. See id.

      Regarding the factual basis for a guilty plea, “before accepting a plea of

guilty, the trial court must satisfy itself that there is a factual basis for the

plea.” Fluharty, supra (quoting Commonwealth v. Maddox, 450 Pa. 406,

409-10, 300 A.2d 503, 505 (1973)). The factual-basis requirement, however,

does not mean the defendant must admit every element of his crimes.

Fluharty, supra.

         In this respect, the United States Supreme Court has held:

            [W]hile most pleas of guilty consist of both a waiver
            of trial and an express admission of guilt, the latter
            element is not a constitutional requisite to the
            imposition of criminal penalty. An individual accused
            of    crime    may     voluntarily,   knowingly,   and
            understandingly consent to the imposition of a prison
            sentence even if he is unwilling or unable to admit his
            participation in the acts constituting the crime.

            Nor can we perceive any material difference between

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           a plea that refuses to admit commission of the
           criminal act and a plea containing a protestation of
           innocence when, as in the instant case, a defendant
           intelligently concludes that his interests require entry
           of a guilty plea and the record before the judge
           contains strong evidence of actual guilt.

        North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160,
        167, 27 L.Ed.2d 162, 171 (1970). See Commonwealth v.
        Cottrell, 433 Pa. 177, 179, 249 A.2d 294, 295 (1969)
        (“[W]here there is significant evidence of guilt…and the
        accused, after adequate consultation with his counsel,
        decides to plead guilty, that plea is not rendered invalid
        merely because the accused is unable or unwilling to detail
        the occurrence in court”).

        It would appear, therefore, that a defendant may knowingly
        and voluntarily enter a guilty plea as a matter of strategy or
        expedience even though he…is unable or unwilling to admit
        guilt. Nevertheless, the Pennsylvania Supreme Court has
        observed that if a defendant pleads guilty to a criminal
        charge, and in the next breath contravenes the plea by
        asserting facts which, if true, would establish that he is not
        guilty, then his guilty plea is of no effect and should be
        rejected.

                                 *     *      *
        Thus,

           when a guilty plea is accompanied by the assertion of
           facts which make out a defense to the crimes charged,
           the plea may not be accepted unless the
           discrepancy is resolved. The defendant must be
           aware, and the record must show that he is aware,
           that his defense cannot be considered when he enters
           a guilty plea.      The record must affirmatively
           demonstrate that he knows that by pleading guilty he
           waives the opportunity to assert facts which may
           establish the defense.

Fluharty, supra at 315-16 (internal citations omitted) (emphasis added).

Likewise, “There simply is no legal requirement that a factual basis be


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separately admitted after its recitation for entry of a valid guilty plea. The

guilty plea proceeding is the process by which the defendant admits that he

committed the actions outlined in the factual basis for the plea. Appellant

entered a guilty plea; ipso facto, he admitted to the details of the crimes

outlined in the factual basis.” Commonwealth v. Morrison, 878 A.2d 102,

106 (Pa.Super. 2005), appeal denied, 585 Pa. 688, 887 A.2d 1241 (2005).

Further, the factual discrepancy asserted must involve a complete defense to

the charge and, if true, establish that the defendant is not guilty.

Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971). A possible

mitigating factor is not a complete defense for purposes of rendering a guilty

plea invalid. Id. The discrepancy must involve sufficient exculpatory evidence

to vitiate the plea. Id.

      Regarding the elements of the crimes and nature of the offenses in the

context of a guilty plea, where ample, competent evidence supports a guilty

plea, allegations of manifest injustice arising from the guilty plea must go

beyond a mere claim of lack of technical recitation of the legal elements of the

crimes. Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982).

“Even if the guilty plea colloquy lacks an explanation of the elements of the

crime[s] charged,    no    manifest injustice   occurs   if the   circumstances

surrounding the entry of the plea indicate that the defendant understood the

nature of the charge[s] against him.” Commonwealth v. Schultz, 505 Pa.

188, 192, 477 A.2d 1328, 1330 (1984).           Absent an assertion that the


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defendant did not actually understand the nature of the offenses charged, we

can presume the defendant had notice of the crimes in sufficient detail to

support the guilty plea. Martinez, supra at 556-57, 475 A.2d at 1306. Thus,

no “ritualistic litany of the formal legal elements” of the offense is required to

be read to the defendant at the hearing. Id.

         A guilty plea is an acknowledgement by a defendant that he
         participated in the commission of certain acts with a criminal
         intent. He acknowledges the existence of the facts and the
         intent. The facts that he acknowledges may or may not be
         within the powers of the Commonwealth to prove. However,
         the plea of guilt admits that the facts and intent occurred,
         and is a confession not only of what the Commonwealth
         might prove, but also as to what the defendant knows to
         have happened.

         A defendant may plead guilty for any reason: to shield
         others, avoid further exposure, to diminish the penalty, to
         be done with the matter, or any secret reason that appeals
         to his needs. What is generally and most objectively
         accepted is that a plea is offered to relieve conscience, to
         set the record straight and, as earnest of error and
         repentance, to accept the penalty.

Id. at 557-58, 475 A.2d at 1307. Moreover,

         A guilty plea is not a ceremony of innocence, it is an
         occasion where one offers a confession of guilt. If a
         defendant voluntarily, knowingly, and intelligently wishes to
         acknowledge facts that in themselves constitute an offense,
         that acknowledgement is independent of the procedures of
         proving or refuting them. How they would be proved, what
         burdens accompany their proof, what privileges exist to
         avoid their proof, what safeguards exist to determine their
         accuracy, and under what rules they would be determined,
         by whom and how, are irrelevant. The defendant is before
         the court to acknowledge facts that he is instructed
         constitute a crime. He is not there to gauge the likelihood
         of their proof [or] to weigh them in the light of the available
         procedures for their proof. He is there to voluntarily say

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         what he knows occurred, whether the Commonwealth would
         prove them or not, and that he will accept their legal
         meaning and their legal consequence.

Id. at 559, 475 A.2d at 1307-08.

      As a whole, the plea-bargaining process is a significant part of the

criminal justice system; concerning negotiated plea agreements:

         [W]here the guilty plea agreement between the
         Commonwealth and a defendant contains a negotiated
         sentence…and where that negotiated sentence is accepted
         and imposed by the court, a defendant is not allowed to
         challenge the discretionary aspects of the sentence.
         Commonwealth v. Reichle, [589 A.2d 1140 (Pa.Super.
         1991)]. We stated, “If either party to a negotiated plea
         agreement believed the other side could, at any time
         following entry of sentence, approach the judge and have
         the    sentence     unilaterally altered,   neither  the
         Commonwealth nor any defendant would be willing to enter
         into such an agreement.” Id. at 1141.

Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa.Super. 2003) (some

internal citations omitted). To allow an appellant to avoid his sentence after

he entered into a negotiated plea “would undermine the designs and goals of

plea bargaining” and “make a sham of the negotiated plea process.”            Id.

(quoting Reichle, supra).

      Instantly, Appellant entered a negotiated guilty plea for his involvement

in the brutal assault of the victim. Appellant failed to object to the validity of

his plea during the plea colloquy or file a post-sentence motion to withdraw

his plea. When Appellant sought habeas corpus relief in federal court, the

district court deemed defense counsel ineffective because counsel had failed

to consult Appellant before discontinuing his first direct appeal; and the federal

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court restored those direct appeal rights solely on that basis.

       In his initial reinstated direct appeal, Appellant raised for the first time,

in his Rule 1925(b) statement, his complaint about the trial court’s

miscommunication of the possible maximum sentence and argued that

position in his reinstated direct appeal.          The Commonwealth objected to

Appellant’s contention on the ground that he had waived his right to an

appellate decision on the merits for failure to follow proper state procedure,

i.e., objecting to the plea during the colloquy or filing a post-sentence motion

to withdraw the plea.           When this Court held Appellant’s claims were

procedurally waived, we made clear that his current counsel should seek

merits review by filing a PCRA petition and arguing the issue under the rubric

of ineffective assistance of counsel.          See Commonwealth v. Lincoln, 72

A.3d 606, 611 (Pa.Super. 2013).

       Rather than follow this Court’s express directive, Appellant’s counsel

went instead straight back to federal court, seeking relief in the form of

reinstatement of Appellant’s direct appeal rights for the second time in order

to have his state-court claim addressed directly on the merits.                This

fundamentally erroneous but strategic move cost Appellant over a year in

additional federal judicial review.5

____________________________________________


5No doubt Appellant already enjoyed a sympathetic rapport with the federal
court. On the other hand, if Appellant had observed this Court’s directive in
2013, then his claim(s) would have been addressed readily, albeit subject to



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       Nevertheless, after a long delay largely of Appellant’s counsel’s making,

on January 5, 2015, this Court lifted the June 30, 2014 stay on Appellant’s

emergency application to reinstate his direct appeal nunc pro tunc for the

second time and reinstated his direct appeal on the merits. More delay ensued

due to Appellant’s dissatisfaction with the timing and manner in which his

appeal was reinstated, which complaints he again took to federal court. Upon

his return from federal court, we sought to complete the record for review,

but without any cooperation from Appellant’s counsel or success.

       With respect to Appellant’s claim that his plea was tainted because the

court misstated the maximum sentence, Appellant’s oral plea colloquy and

sentencing transcript demonstrates: (1) the court did misstate the maximum

penalty when it said it could impose a total maximum sentence of eighty-five

(85) years’ incarceration, because the maximum sentence available in this

case   was     sixty-five   (65)    years’     incarceration;   but   (2)   the   court’s



____________________________________________


a more rigorous examination under the three-pronged PCRA test for
ineffective assistance of counsel. In essence, Appellant failed to exhaust his
state remedies before he returned to the federal court for additional relief.
Because Appellant was required to pursue PCRA review before heading to
federal court, habeas relief probably should not have been extended to him at
that time. Instead, the federal court should have dismissed his habeas corpus
petition due to the availability of state corrective remedies. See generally
28 U.S.C.A. § 2254; Commonwealth v. Lambert, 765 A.2d 306 (Pa.Super.
2000). In any event, Appellant successfully did an end run around his state
PCRA remedies, skirted the enhanced review required under the PCRA, and
had the federal court order the second reinstatement of his direct appeal, this
time clarifying that the state court must review Appellant’s claims on the
merits.

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misstatements were eventually corrected and plainly immaterial to Appellant’s

plea.

        Specifically, when Appellant initially came into court for the plea colloquy

and sentencing, which occurred at the same hearing, the court began by

outlining the maximum sentence for each principle offense charged: robbery,

aggravated assault, attempted murder, theft, and possession of an instrument

of a crime.      In adding up the potential maximum sentences, the court

misstated the aggregate maximum sentence as eighty-five years, without

consideration of the merger of aggravated assault and attempted murder. The

court also reviewed Appellant’s statement admitting he did repeatedly hit the

victim and took money from her social security check. (See N.T., Oral Plea

Colloquy and Sentencing, 10/27/03, at 2-4.)          Nevertheless, the transcript

makes very clear Appellant came into court already armed with the

Commonwealth’s offer of a sentence of twenty to forty years, which the court

right away acknowledged. (Id. at 4-7.) Appellant was permitted to consult

with his attorney at this point. After consultation, Appellant’s attorney relayed

something to the Commonwealth off the record, and the Commonwealth

agreed to amend its sentence offer to two options: (a) sixteen to forty years

or (b) seventeen and one half to thirty-five years, either one followed by a

term of probation for the court to decide, in exchange for a guilty plea to the

four charges of robbery, aggravated assault, attempted murder, and

possession of an instrument of crime. (Id. at 7.) Appellant offered to plead


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guilty to robbery and aggravated assault in return for sixteen to forty years.

(Id. at 8.) The plea colloquy continued, during which the court confirmed

Appellant’s understanding that he was waving his rights to a jury trial and the

presumption of innocence as well as his rights to pretrial motions and a speedy

trial. (Id. at 9-12.) The court also made sure Appellant understood the few

limited rights he would retain for appellate review, and Appellant affirmed he

was satisfied with his attorney’s representation. (Id. at 13-14.)

      The Commonwealth then proceeded with a detailed summary of the

facts of the case, including the extent of the victim’s injuries and surgeries,

Appellant’s statement of provocation and how he hit the victim, and the

potential trial testimony of witnesses. (Id. at 14-20.) The court then asked

Appellant if he wanted to add, subtract, or change anything in the factual

recitation. (Id. at 20.) In that exchange, the court confirmed Appellant’s

agreement to the facts that Appellant hit the victim in the face a lot and took

her money. Appellant disputed the use of the radio. (Id. at 21-23.)

      Ultimately, Appellant agreed to plead guilty to the three charges of

robbery, aggravated assault, and attempted murder only.        (Id. at 24-25).

Before the court formally imposed the sentence, there was a sidebar off the

record, and the court stated:

         [Court]: Okay, I had given you the sentence wrong. On
         0305-501 charging you with attempted murder, I’m going
         to impose the recommended sentence of not less than 16,
         [or] more than 40 years in a state correctional institution.

         Aggravated assault will merge, and on robbery I’m going to

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J-A08011-13


         sentence you to 20 years[’] probation and that will be
         consecutive to that for the attempted murder charge. Your
         effective sentence here today is not less than 16 nor more
         than 40 years to be followed by 20 years’ probation. …

(Id. at 27). Appellant’s counsel apprised Appellant of his appellate rights on

the record, (id. at 28), and the proceedings ended by agreement and without

additions or objection.

      When read in context, the plea/sentencing transcript demonstrates

Appellant came into the plea/sentencing proceedings with a deal in place.

Appellant fully participated in the proceedings and artfully reduced the charges

he pled to and renegotiated his original sentence deal from twenty to forty

years to sixteen to forty years, rejecting the other offer of seventeen and one

half to thirty-five years. The record shows Appellant’s focus on the lowest

possible minimum sentence dominated his plea bargaining.         The transcript

also indicates the existence of a written plea colloquy, which is not in the

certified record. Following this Court’s orders and inquiries, current counsel

simply denied responsibility for procuring it without showing any effort to

obtain it.   See Bongiorno, supra.     The only inference we can draw from

counsel’s dismissive response is that the written colloquy would not have

actively supported Appellant’s contentions.       Further, Appellant’s chosen

sentence was significantly less than the maximum possible sentence allowable

by law. See Warren, supra; Carter, supra. Therefore, we conclude the

court’s misstatements about the maximum sentence, which the court

corrected, were immaterial to Appellant’s guilty plea and did not render it

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unknowing, involuntary, or unintelligent. See Barbosa, supra.

      In its opinion, the trial court addressed Appellant’s other complaints

concerning the factual basis for the plea, the elements of the crimes and the

nature of the offenses as follows:

         [Appellant contends] that he should not have been able to
         enter a guilty plea on the charge of attempted murder
         because the issue as to whether he struck the victim with a
         radio was in dispute. Regardless [of] whether [Appellant]
         used a radio, he pled guilty after the District Attorney stated
         that she would present the following evidence, had there
         been a trial:

            [A]t which point he flipped out. He then admits—he
            said, did you hit her? Yes. How many times? I don’t
            know. Was it a lot? Probably. Where did you hit her?
            In the face. What did you hit her with? My hands. …
            Your Honor, the victim would testify that she was not
            hit with just hands. She was also hit with a radio.
            That radio was confiscated and submitted to the police
            lab where a reddish-brown stain was on the back,
            along with droplets on the bottom edge, [the] top of
            the radio [was also] tested and tested positive for
            blood and human protein.

         Given this recitation of the evidence as it would be
         presented to a jury, [Appellant] still opted to plead guilty.
         He did not agree that he utilized a radio in the commission
         of this crime, but this is not a necessary element of the
         crime of attempted murder. Under Pennsylvania law, a
         person “commits an attempt when, with the intent to
         commit a specific crime, he does any act which constitutes
         a substantial step towards the commission of the crime.”
         [18] Pa.C.S.A § 901(a). If a person takes a substantial step
         toward the commission of a killing, with the specific intent
         in mind to commit such an act, he may be convicted of
         attempted murder. Commonwealth v. Dale, 836 A.2d
         150, 15[3] (Pa.Super. 2003). Nowhere in our crimes code
         does it mandate that, to be convicted of any degree of
         murder, a[n appellant] must use a weapon besides his own
         hands. This [c]ourt is unable to see how the issue of

                                     - 26 -
J-A08011-13


        whether [Appellant] used the radio has any bearing on
        whether he attempted to kill his victim.

        [Appellant] also contends that he submitted several facts
        which would have established an affirmative defense of
        “heat of passion.” This claim should likewise fail, as a
        negotiated plea deal is no place for an affirmative defense.
        A negotiated plea deal is just that—an agreement to a
        specific sentence based on [Appellant’s] agreeing to the
        facts as the prosecution lays them out. If [Appellant] did
        not agree to these facts, he was not required to accept the
        deal. He could have gone to trial and presented any
        evidence that he had which might [have] allow[ed] for a
        “heat of passion” defense. At that point, a jury would have
        determined whether he committed these crimes. Instead,
        however, he opted to accept the deal offered by the
        prosecution, which, in exchange for a shorter sentence,
        limited his trial rights. Further, this issue is not ripe for
        appeal as there is no place in the transcript which indicates
        that [Appellant] attempted to even raise this issue [before]
        this [c]ourt.

                                  *     *      *

        [Appellant] alleges that this [c]ourt erred when it did not list
        the elements of each offense or otherwise ensure that
        [Appellant] knew of the elements of each offense. There is
        likewise no merit to this claim. This [c]ourt ensured that
        [Appellant] knowingly, voluntarily, and intelligently waived
        his rights to a jury trial and pled guilty to the charges as
        they were presented to [him]. Specifically spelling out the
        elements of each crime is not necessary where it is clear
        that the [c]ourt explained the nature of the charges during
        the colloquy. …

        It is clear from the transcript that [Appellant] was made
        aware of the nature of the charges against him, even if he
        was not clear on the specific elements of each charge. This
        [c]ourt meticulously confirmed that he knowingly,
        voluntarily, and intelligently pled guilty after the entire
        colloquy was completed, and this [c]ourt properly accepted
        that plea.

(Trial Court Opinion, filed September 25, 2012, at 3-5). The record supports

                                      - 27 -
J-A08011-13


the court’s analysis.      See Muhammad, supra.        Here, Appellant actively

participated in the plea-bargaining process which continued throughout the

plea proceedings, and he failed to raise a complete affirmative defense or

exculpatory matters which could call the validity of his plea into question. See

Sampson, supra (stating existence of possible mitigating factor is not

complete defense for purposes of rendering guilty plea invalid; claimed

discrepancy must involve sufficient exculpatory evidence to vitiate plea

completely).

        Additionally, in preparation for his plea, Appellant had for his

information, inter alia, the criminal complaint and other charging documents

listing the elements of the offenses, the witnesses’ statements, the victim’s

medical records, and the preliminary hearing testimony. Thus, Appellant was

fully informed of the nature and elements of his offenses.        See Schultz,

supra; Martinez, supra. Under the circumstances disclosed in the record as

provided, Appellant understood the factual predicate for his plea and the

nature of the offenses and charges against him. Thus, no “manifest injustice”

occurred on these grounds.             Based upon the foregoing, we conclude

Appellant’s claims are insufficient to merit relief.6 Accordingly, we affirm.

        Judgment of sentence affirmed.
        Judge Allen did not participate in the consideration or decision of this
case.
____________________________________________


6 Even if Appellant’s claims had any merit, the proper relief would be to allow
him to withdraw his guilty plea; he would not be entitled to release from
custody.

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J-A08011-13




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2017




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