J-S81039-16


                                   2016 PA Super 308

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                              Appellee

                         v.

LARRY KPOU

                              Appellant                      No. 690 EDA 2016


            Appeal from the Judgment of Sentence February 3, 2016
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009272-2015


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                             FILED DECEMBER 29, 2016

        Larry Kpou (“Appellant”) appeals from the judgment of sentence

entered by the Court of Common Pleas of Philadelphia County after it

accepted his guilty plea to Possession With Intent to Deliver (“PWID”), to

wit, crack cocaine and marijuana, and Criminal Conspiracy.1 Sentenced to a

negotiated term of 11½ to 23 months’ incarceration with immediate parole,

plus    three   years’    reporting      probation,   Appellant   contends   the   court

erroneously refused to grant his post-sentence motion to withdraw his plea.

We affirm.

        The plea court provides an apt history of the case as follows:

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
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      On February 3, 2016, The Honorable Mia R. Perez conducted a
      guilty plea colloquy with the Defendant [hereinafter “Appellant”],
      Larry Kpou, who had been sworn under oath. Appellant pled
      guilty…. Judge Perez engaged in a specific line of inquiry,
      advising Appellant on the nature of the charges, the rights he
      was giving up, and the possible sanctions the court was
      authorized to impose.       N.T. 2/3/16 at 2-17.     Judge Perez
      requested a recitation of the facts from the Assistant District
      Attorney, [who asserted that, on June 19, 2015, a Narcotics
      Field Unit of the Philadelphia Police Department observed one
      Mr. Lugman Garbey sell marijuana to a proven, reliable
      confidential informant (“CI”) as part of a controlled buy carried
      out at the address of 6311 West Girard Avenue.

      On June 21, 2015, the Narcotics Unit arranged for another
      controlled buy at the address and observed Mr. Garbey take the
      buy money from the CI. Garbey then summoned Appellant, who
      handed two packets of marijuana to the CI on the front steps..

      On June 24, 2015, officers arrested Garbey and Appellant. A
      search of Appellant’s person incident to his arrest disclosed two
      packets of marijuana. A subsequent search of 6311 West Girard
      Avenue recovered three packets of crack cocaine].

      Having heard the facts, Judge Perez asked Appellant, “[D]id you
      hear the facts as recited by the District Attorney?” Id. at 16.
      Appellant replied, “Yes.” Id. The Judge then asked, “Are those
      the facts that you’re pleading guilty to here today?” and
      Appellant replied, “Yes.” Id. Appellant did not raise any issue
      with the facts or otherwise.

      Judge Perez then imposed the sentence that had previously been
      negotiated by the parties: 11 ½ -23 months’ incarceration with
      immediate parole plus 3 years of reporting probation.

Trial Court Opinion, filed 6/2/16, at 1-2.

      On February 5, 2016, Appellant filed a motion to withdraw his guilty

plea on the asserted basis that he was “actually innocent” of the crimes

charged. The court denied Appellant’s motion on March 1, 2016, however,

and this timely appeal followed.


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      Appellant presents one question for our consideration:

      [DID] THE TRIAL COURT ERR[] BY DENYING MR. KPOU’S POST-
      SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA AS HE
      ALLEGED THAT HE WAS ACTUALLY INNOCENT?

Appellant’s brief at 7.

      Appellant argues that a manifest injustice would occur if he were not

permitted to withdraw his guilty plea because he has asserted that he is

actually    innocent    of   the   offenses   in   question.      In   response,   the

Commonwealth claims that Appellant’s bald assertion of innocence fails to

satisfy    the   more   stringent    “manifest     injustice”   standard   predicating

withdrawal on a defendant’s demonstration that his or her plea was

unknowingly, unintelligently, or involuntarily tendered.

      This Court has delineated the principles and standards that govern a

defendant’s request to withdraw a guilty plea:

      “At any time before the imposition of sentence, the court may, in
      its discretion, permit, upon motion of the defendant, or direct
      sua sponte, 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); Commonwealth v. Santos, 301 A.2d 829, 830 (Pa.
      1973). “Although there is no absolute right to withdraw a guilty
      plea, properly received by the trial court, it is clear that a
      request made [b]efore sentencing ... should be liberally
      allowed.” Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa.
      1973). “Thus, in determining whether to grant a pre-sentence
      motion for withdrawal of a guilty plea, ‘the test to be applied by
      the trial courts is fairness and justice.’” Id. at 271. “If 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.’” Id. As a
      general rule, “the mere articulation of innocence [is] a ‘fair and
      just’ reason for the pre-sentence withdrawal of a guilty plea
      unless the Commonwealth has demonstrated that it would be

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     substantially prejudiced.” Commonwealth v. Katonka, 33
     A.3d 44, 46 (Pa.Super. 2011) (en banc ) [ ].

     [Of the considerations outlined in Forbes, “the critical one is the
     presence or lack of prejudice to the Commonwealth.”
     Commonwealth v. Boofer, 375 A.2d 173, 174 (Pa.Super.
     1977) (citing Commonwealth v. McLaughlin, 366 A.2d 238,
     241 (Pa. 1976) (stating: “[T]he existence of substantial
     prejudice to the Commonwealth is the crucial factor in
     determining whether to allow a presentence withdraw of a guilty
     plea”)). Generally speaking, “prejudice would require a showing
     that due to events occurring after the plea was entered, the
     Commonwealth is placed in a worse position than it would have
     been had trial taken place as scheduled.” Commonwealth v.
     Kirsch, 930 A.2d 1282, 1286 (Pa.Super. 2007), appeal denied,
     945 A.2d 168 (Pa. 2008). When a guilty plea is withdrawn
     before sentencing, the withdrawal usually does not substantially
     prejudice the Commonwealth if it simply places the parties “back
     in the pretrial stage of proceedings.” Id. Mere speculation that
     witnesses would not appear at a subsequent trial or would
     change their stories does not alone rise to the level of
     substantial prejudice. McLaughlin, 366 A.2d at 241.]

     In contrast, after the court has imposed a sentence, a defendant
     can withdraw his guilty plea “only where necessary to correct a
     manifest injustice.” Commonwealth v. Starr, 301 A.2d 592,
     595 (Pa. 1973). “[P]ost-sentence motions for withdrawal are
     subject to higher scrutiny since courts strive to discourage the
     entry   of guilty      pleas as    sentencing-testing   devices.”
     Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa.Super. 2010),
     appeal denied, 32 A.3d 1276 (Pa. 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, 771 A.2d 767,
     771 (Pa. 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

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

Commonwealth v. Prendes, 97 A.3d 337, 351-54 (Pa.Super. 2014)

(parallel citations omitted).

      Initially, we note that Appellant effectively concedes that he tendered

a knowing, voluntary, and intelligent guilty plea, a position consonant with

our review of the guilty plea colloquy and the record at-large. He argues,

instead, that his post-sentence assertion of innocence, alone, is enough to

demonstrate the manifest injustice necessary to secure a post-sentence

withdrawal of a guilty plea.    Nothing in our jurisprudence supports such a

proposition, which runs counter to established precepts that reject defendant

attempts to disavow self-incriminating statements made at a plea hearing

absent a showing of coercion, fundamental misunderstanding, or the like.

See Pollard, at 523 (holding “[a] person who elects to plead guilty is bound

by the statement he makes in open court while under oath and he may not

later assert grounds for withdrawing the plea which contradict the


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statements he made at his plea colloquy.”).      Moreover, as noted above in

our standard of review, our courts have recognized the relevance of an

assertion of innocence only in the pre-sentence context, explaining that the

assertion may represent a “fair and just reason” for pre-sentence withdrawal

of a guilty plea. See Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa.

2015).2
____________________________________________


2
  Nearly nine months before Appellant’s guilty plea and subsequent motion
to withdraw, our Supreme Court decided in Carrasquillo that a bare
assertion of innocence does not provide a per se “fair and just reason” for a
pre-sentence withdrawal of a guilty plea. In so holding, the Court eschewed
the former “bright line rule” applicable to pre-sentence motions in favor of
an inquiry into “whether the accused has made some colorable
demonstration, under the circumstances, such that permitting withdrawal of
the plea would promote fairness and justice.” Id. at 129. Applying this
standard to the facts before it, the Court observed:

       This case, in our view, illustrates why the existing per se
       approach to innocence claims is unsatisfactory.              Here,
       Appellant’s assertion was first made in sentencing allocution,
       after the close of the evidentiary record . . . . No request was
       made to reopen the record for an orderly presentation in support
       of Appellee’s request. Moreover, the bizarre statements made
       by Appellee in association with his declaration of innocence
       wholly undermined its plausibility, particular[ly] in light of the
       Commonwealth’s strong evidentiary proffer at the plea hearing.
       In the circumstances, the common pleas court should not have
       been required to forego sentencing; rather, we find that it acted
       within its discretion to refuse the attempted withdrawal of the
       plea.

Id., at 1292-93.

       Here, as it is clear that Appellant’s bare assertion of innocence would
fail to meet the more lenient standard applicable to pre-sentence motions to
withdrawals, given the record before us, it follows a fortiori that it cannot
(Footnote Continued Next Page)


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      Indeed, this Court has held that post-sentence claims of innocence do

not demonstrate manifest injustice, see Commonwealth v. Myers, 642

A.2d 1103, 1108 (Pa.Super. 1994) (holding “[a] defendant’s post-sentence

recantation of guilt does not rise to the level of prejudice on the order of

manifest injustice sufficient to require that he be permitted to withdraw his

plea of guilty.”), and Appellant presents no meaningful argument or legal

theory on which to distinguish his case from such precedent.                This is

particularly so where, again, Appellant advances no claim of an unknowing,

involuntary, or unintelligent plea.         Accordingly, we discern no merit to the

present appeal.

     Judgment of sentence is AFFIRMED.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2016




                       _______________________
(Footnote Continued)

meet the heightened standard of manifest injustice that applies to his post-
sentence withdrawal of his plea.



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