J-S59019-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                   Appellee                :
                                           :
            v.                             :
                                           :
MICHAEL J. CONIKER,                        :
                                           :
                   Appellant               :   No. 119 WDA 2015

          Appeal from the Judgment of Sentence August 11, 2014,
                Court of Common Pleas, Allegheny County,
            Criminal Division at No(s): CP-02-CR-0000696-2013
                       and CP-02-CR-0000714-2013

BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED SEPTEMBER 29, 2015

      Appellant, Michael J. Coniker (“Coniker”), appeals from the judgment

of sentence entered on August 11, 2014 by the Court of Common Pleas of

Allegheny County, Criminal Division. For the reasons that follow, we affirm.

      The notes of testimony from Coniker’s guilty plea hearing reflect the

following factual history for this case:

            Beginning with Case No. 714 of 2013, the
            Commonwealth would call witnesses who would
            testify that on August 25, 2012, [Coniker] entered
            the house of his neighbor, Keith Edwards, without
            permission and he then fled and during the course of
            the flight he was apprehended by police officers.
            When he was apprehended by police officers, he
            informed them he had rigged his house with a
            propane tank by placing it next to his furnace to
            blow up first responders to his house. Officers then
            checked his house and verified that there was a
            propane take hidden next to the defendant’s furnace.




*Former Justice specially assigned to the Superior Court.
J-S59019-15


           He communicated these to Officers Skillen and then
           Detective Leach.

           With regard to the case at No. 696 of 2013, the
           Commonwealth would call witnesses who would
           testify that on August 24, 2012, [Coniker] had called
           Andrew Hrezo on the phone and made numerous
           threats to Mr. Hrezo threatening physical harm to
           him.

NT, 8/11/14, at 9.

      The trial court summarized the procedural history of this case as

follows:

              [Coniker] was charged, at CC 20130071, with one
           count of burglary (18 Pa.C.S.A. § 3502(c)(1)); one
           count of criminal attempt burglary (18 Pa.C.S.A.
           § 901(a)); one count of criminal trespass (18
           Pa.C.S.A. § 3503(a)(1)(ii)); one count of risking a
           catastrophe (18 Pa.C.S.A. § 3302(b)); one count of
           terroristic threats (18 Pa.C.S.A. § 2706(a)(1)); one
           count of recklessly endangering another person (18
           Pa.C.S.A. § [2]705); and one count of disorderly
           conduct graded as a summary offense (18 Pa.C.S.A.
           § 5503 (a)(1)). At CC 201300696, he was charged
           with two counts of terroristic threats (18 Pa.C.S.A.
           § 2706(a)(1)).

              On August 11, 2014[, Coniker] entered pleas of
           guilty pursuant to a plea agreement reached with the
           Commonwealth. That agreement provided for the
           withdrawal of the burglary and criminal attempt-
           burglary charges at CC 201300714 and one of the
           terroristic threat counts at CC 201300696 and the
           reduction of the criminal trespass charge to a charge
           of defiant trespass, graded as a misdemeanor of the
           third degree, and reduction of the risking a
           catastrophe charge from a felony of the third degree
           to a misdemeanor of the second degree. [Coniker]
           entered pleas of guilty to the reduced charges and
           the remaining charges that were not withdrawn and



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            an agreed upon sentence [] three years [of]
            probation was imposed at the risking a catastrophe
            charge at [CC] 201200696 and at the remaining
            terroristic threats charge at the other case number,
            to run concurrently. No further penalty was imposed
            on the remaining counts.           [Coniker], through
            counsel, filed a [m]otion for [l]eave to [w]ithdraw his
            [g]uilty [p]lea[,] which was denied by operation of
            law on December 22, 2014. This appeal followed.

Trial Court Opinion, 4/13/15, at 2-3.

      On appeal, Coniker raises the following issue for our review: “Did the

lower court err in denying [Coniker]’s motion to withdraw his guilty plea

without a hearing because the plea was entered when [Coniker] suffered

from delusions which precluded him from entering a knowing and intelligent

plea, which is evidence of manifest injustice?” Coniker’s Brief at 6.

      Our Court has held that “[t]here is no absolute right to withdraw a

guilty plea, and the decision as to whether to allow a defendant to do so is a

matter within the sound discretion of the trial court.” Commonwealth v.

Pollard, 832 A.2d 517, 522 (Pa. Super. 2003).         “A trial court’s decision

regarding whether to permit a guilty plea to be withdrawn should not be

upset absent an abuse of discretion.” Commonwealth v. Pardo, 35 A.3d

1222, 1227 (Pa. Super. 2011). “[P]ost-sentence motions for withdrawal are

subject to higher scrutiny since courts strive to discourage entry of guilty

pleas as sentence-testing devices.” Commonwealth v. Broaden, 980 A.2d

124, 129 (Pa. Super. 2009) (quotations omitted). Importantly, “a defendant

who attempts to withdraw a guilty plea after sentencing must demonstrate



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prejudice on the order of manifest injustice before withdrawal is justified.”

Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013), appeal

denied, 87 A.3d 319 (Pa. 2014). Our Court has held that “[a] plea rises to

the level of manifest injustice when it is entered into involuntarily,

unknowingly,     or    unintelligently.”     Id.   (quoting    Commonwealth   v.

Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002)).

      Prior to accepting a guilty plea, a trial court must determine on the

record whether it is voluntarily, knowingly, and intelligently tendered. See

Pa.R.Crim.P. 590(a)(3).        In order to ensure a voluntary, knowing, and

intelligent plea, our Supreme Court requires that a trial court, at a minimum,

ask the following questions during a plea colloquy:

            1)        Does the defendant understand the nature of
                      the charges to which he is pleading guilty?

            2)        Is there a factual basis for the plea?

            3)        Does the defendant understand that he has the
                      right to a trial by jury?

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

            5)        Is the defendant aware of the permissible
                      ranges 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?




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Commonwealth v. Moser, 921 A.2d 526, 529 (Pa. Super. 2007).

Additionally, “the examination does not have to be solely oral. Nothing

precludes the use of a written colloquy that is read, completed, and signed

by the defendant, made part of the record, and supplemented by some on-

the-record oral examination.” Id. “Our law presumes that a defendant who

enters a guilty plea was aware of what he was doing,” and “[h]e bears the

burden of proving otherwise.” Pollard, 832 A.2d at 523 (citation omitted).

In assessing the adequacy of a guilty plea colloquy and the voluntariness of

the subsequent plea, “the court must examine the totality of circumstances

surrounding the plea.” Broaden, 980 A.2d at 129.

     Coniker argues that he did not enter a knowing, voluntary, and

intelligent plea because at time he pled guilty, he was suffering from

delusions that prevented him from fully understanding the ramifications of

his plea. Coniker’s Brief at 18. Coniker points to his allocution during his

guilty plea hearing as proof that he did not understand what was happening

and the ramifications of pleading guilty.   See id.   During his allocution,

Coniker hardly spoke about the charges to which he was pleading guilty and

instead spoke at length about his divorce, his troubled relationship with his

wife’s family, and his belief that the mental health system in this

Commonwealth is corrupt. See N.T., 8/11/14, at 11-17. Coniker therefore

contends that he was not competent to plead guilty. See id. at 18-19.




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      Coniker concedes that his guilty plea colloquy met all of the

requirements of Rule 590(a)(3). Coniker’s Brief at 18. Moreover, our review

of the certified record on appeal amply demonstrates that his oral and

written plea colloquies covered each of the six areas of Rule 590(a)(3) listed

above. See N.T., 8/11/14, at 2-11; Guilty Plea Explanation of Defendant’s

Rights, 8/11/14.

      Therefore, we turn our attention to Coniker’s argument that he was

not competent to plead guilty and did not fully understand the nature of his

guilty plea proceedings.    “The test for determining a defendant’s mental

competency to enter a guilty plea is whether he had sufficient ability at the

pertinent time to consult with counsel with a reasonable degree of rational

understanding, and have as a rational, as well as a factual understanding of

the proceedings against him.”     Commonwealth v. Long, 456 A.2d 641,

644 (Pa. Super. 1983).

      The certified record reflects the following.     In his written colloquy,

when asked if he ever had any physical or mental illness that would affect

his ability to understand his rights or affect the voluntary nature of the plea,

Coniker answered “no.”       Guilty Plea Explanation of Defendant’s Rights,

8/11/14, ¶ 64. Additionally, after Coniker informed the trial court during his

oral colloquy that he took lithium, he also told the court that it did not affect

his ability to understand the proceedings. N.T., 8/11/14, at 7-8. “A person

who elects to plead guilty is bound by the statements he makes in open



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court while under oath and may not later assert grounds for withdrawing the

plea which contradict the statements he made at his plea colloquy.”

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011).

      Therefore, there is no support in the record for Coniker’s claim that he

was delusional and not competent to plead guilty. The record reflects that

his oral and written colloquies satisfied Rule 590(a)(3) and that Coniker had

a full understanding of his guilty plea proceedings. Accordingly, we conclude

that Coniker made a knowing, voluntary, and intelligent guilty plea.       As

such, Coniker’s claim provides no basis for relief.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2015




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