J-S05027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEMAUN GREEN                               :
                                               :
                       Appellant               :   No. 1075 WDA 2018

        Appeal from the Judgment of Sentence Entered January 5, 2018
      In the Court of Common Pleas of Mercer County Criminal Division at
                        No(s): CP-43-CR-0000594-2017


BEFORE:      PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED FEBRUARY 21, 2019

        Appellant Demaun Green appeals nunc pro tunc from his judgment of

sentence following his no-contest plea to possession with intent to deliver a

controlled substance (PWID).1 Appellant asserts that he did not voluntarily

plead no-contest to PWID because he was not properly informed of the length

of his potential sentence. We affirm.

        The factual basis for Appellant’s no-contest plea was summarized as

follows at his plea hearing:

        [O]n or about March 9th, 2017, at 731 Wallace Avenue in the City
        of Farrell, the Farrell Police . . . responded to three separate calls
        to that area, and ultimately they went into the house of 731 where
        [Appellant] was located. They saw through a partially open door
        what appeared to be controlled substances on the bed. They went

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*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30).
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     and got a warrant. And in response to that they searched the
     room which was separately keyed in favor of [Appellant].

     In there they found and seized one sealed envelope, two plastic
     bags containing plant material, one knotted plastic bag containing
     a white powdery substance, two small plastic bag corners
     containing white powder, one plastic prescription bottle containing
     one knotted plastic bag containing gray powder, and one small
     knotted plastic bag corner containing gray powder.

     The plant material weighed 4.38 grams of marijuana. The white
     powder was 4.3 grams of cocaine. The white powder from the two
     bags weighed 0.56 grams of cocaine. The gray powder in another
     bag weighed 2.45 grams of heroin. And the gray powder in
     another item contained 0.20 grams of heroin.

     They also found a scale. And when they searched [Appellant], he
     had [$950] in his rectum.

                                   ***

     [Appellant] rented [the] room [at 731 Wallace Avenue] and he
     had a separate key that could lock and separately secure that
     room.

                                   ***

     [Appellant] had a prior conviction at CR 1192-1996 before Judge
     Dobson for 35 [P.S. §] 780-113(a)(30), a felony [PWID], and he
     entered a guilty plea at that time.

Plea Hr’g, 10/31/17, at 14-16.

     Appellant was charged with three counts of PWID.        Appellant’s case

proceeded to a plea hearing on October 31, 2017. At that time, the court

informed Appellant that his sentence could not be run concurrently with

another sentence he was then serving since he had committed the PWID in

the instant matter while on parole.   Id. at 8.   The court also stated that

Appellant would receive the appropriate amount of credit for time served,

whether the time was credited to the sentence for this matter or another


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sentence. Id. at 7-8. When Appellant expressed that he had been under the

impression that he could serve his sentence concurrently to his other

sentence, the court asked him whether he needed additional time to speak

with his attorney. Id. at 9-11. He replied that he did not. Id. at 11. Appellant

stated that he was satisfied with his attorney’s representation of him in the

matter. Id. at 12. Additionally, the court informed Appellant of the potential

length his sentence could be, and he indicated it was his choice to enter the

no-contest plea. Id. at 12-13.

       After the above colloquy with the court, Appellant pled no-contest to

one count of PWID. The remaining counts were withdrawn. As part of the

plea, the parties stipulated that Appellant’s offense gravity score was five and

his prior record score was four.2 Id. at 5. The parties also agreed that half

of the cash confiscated from Appellant, or $425, would be returned to him

after the appeal period concluded. Id. at 6. On January 5, 2018, the court

sentenced Appellant to eleven to twenty-three months’ incarceration followed

by five years’ probation.

       Shortly after the appeal period ended following sentencing, Appellant

filed a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. In his PCRA petition, Appellant sought to have his direct appeal

rights reinstated and requested to withdraw his plea. See PCRA Pet., 2/14/18,

at 4, 6. On April 2, 2018, the PCRA court reinstated Appellant’s appeal rights,
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2 The standard range of the sentencing guidelines provided for a minimum
sentence of nine to sixteen months’ incarceration.

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ordering appointed PCRA counsel to file a post-sentence motion nunc pro tunc

within thirty days of receiving transcripts from the plea hearing.

        Counsel filed a post-sentence motion on May 7, 2018, requesting

modification of Appellant’s sentence since he suffers from mental illness and

addiction to drugs, and wished to spend more time with his teenage daughter

who has mental and behavioral problems. Post-Sentence Mot., 5/7/18, at ¶¶

14-16.     Appellant also sought to withdraw his plea, asserting a lack of

consistency in his legal representation3 and confusion regarding the conditions

of his possible sentence. Id. at ¶¶ 22-27. Further, Appellant asserted that

although he had not filed an appeal during the appeal period, he had not

received the $425 owed to him from the money seized when he was arrested.

Id. at ¶¶ 28-30. Appellant maintained his innocence, asserting that he “only

entered into the plea agreement because he felt that his case was not being

properly taken care of and that he had no chance of success at trial.” Id. at

¶ 31.

        The trial court denied Appellant’s post-sentence motion on June 29,

2018. Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. The trial court

issued a responsive Pa.R.A.P. 1925(a) opinion. The trial court indicated that

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3 Appellant was initially represented by a public defender. He subsequently
retained private counsel for a brief period, and then a public defender was
reappointed to represent Appellant. For the final two-and-one-half months
before the no-contest plea hearing, Appellant was consistently represented by
the public defender.

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       [w]hile there may have been some initial confusion [at the no-
       contest plea hearing, the court] made very clear to [Appellant]
       that his sentence could not be run concurrent before [Appellant]
       entered into his plea. [Appellant] was afforded time by [the court]
       to discuss any confusion with both his attorney and [the court],
       but decided not to do so. Additionally, at his sentencing hearing[,
       Appellant] did not indicate any confusion about his plea, nor did
       he object to the sentence he received. Therefore, [the court] finds
       that his plea was knowingly, voluntarily, and intelligently entered.

Trial Ct. Op., 11/1/18, at 12.

       On appeal, Appellant raises the following question for our review: “Did

the [trial] court abuse its discretion by denying Appellant’s post-sentence

motion to withdraw his guilty plea[4] when Appellant was not properly informed

of the nature and length of his potential sentence?” Appellant’s Brief at 7.

       Appellant asserts that he was “specifically misinformed about the

concurrent or consecutive nature of his sentences. At the time of his plea,

Appellant stated to the court that the promise of a concurrent sentence was

part of the basis for his plea agreement.”       Id. at 13 (citations omitted).

Additionally, Appellant argues that he “was not adequately informed of the

amount of credit he would receive for his time[ ]served while incarcerated.”

Id. at 14. Appellant received forty-three days of credit, “which is significantly

less than the three (3) months that . . . had been represented by his counsel.”

Id. at 15.




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4 The trial court, in its opinion, and Appellant, in his brief, interchangeably
refer to the no-contest plea as a guilty plea.


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     A request to withdraw a no-contest plea and a guilty plea are governed

by the same standards, including the following principles:

     [A]fter the court has imposed a sentence, a defendant can
     withdraw his guilty plea only where necessary to correct a
     manifest injustice.

                                     ***

     To be valid [under the “manifest injustice” standard], a guilty plea
     must be knowingly, voluntarily and intelligently entered. [A]
     manifest injustice occurs when a plea is not tendered knowingly,
     intelligently, voluntarily, and understandingly. 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. Kpou, 153 A.3d 1020, 1023 (Pa. Super. 2016) (citations

and quotation marks omitted).

     There are six areas under Pa.R.Crim.P. 590, which the court should

confirm 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.

Id. (citation omitted). The inquiry into whether a defendant is aware of the

permissible ranges of sentences “includes the requirement that a defendant

not only be advised of the maximum punishment that he might receive but

also that consecutive sentences might be imposed.”         Commonwealth v.

Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc) (citing

Commonwealth v. Persinger, 615 A.2d 1305, 1308 (Pa. 1992)).

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     Further,

     [t]he 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
     [under an abuse of discretion standard]. 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.

Kpou, 153 A.3d at 1023-24.

     Appellant cites Persinger in support of his contention that he was not

adequately informed of the possibility that his sentence in this matter would

be consecutive to the other sentence he was already serving. In Persinger,

the defendant’s plea was deemed not to have been entered intelligently where

neither the court nor his counsel had informed him that his sentences for

multiple convictions could be ordered to be served consecutively. Persinger,

615 A.2d at 1307-08.

     Here, in contrast, the trial court clearly informed Appellant that his

sentence for PWID could not be concurrent with his other sentence.          On

multiple occasions, the court also stated that the sentences would have to be

served consecutively. See N.T. Plea Hr’g at 8, 13. Because Appellant was

informed of the nature of his sentence as being consecutive to his other

sentence, he did not unknowingly or involuntarily enter his plea. See Yager,

685 A.2d at 1003-04 (explaining that “Persinger is inapposite because [the

defendant] was advised . . . that the sentences could (and likely would) be

consecutive.”).




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      Similarly, regarding credit for time served, Appellant was informed that

the exact number of days that would count toward the sentence in this matter

was unknown, but that he would receive credit toward either of his sentences

for the total time he was imprisoned. See N.T. Plea Hr’g at 7. Therefore,

Appellant was informed of the status of his request for time-credit and

voluntarily entered his plea after hearing that information.       Moreover,

Appellant declined further discussion with his attorney and indicated he was

satisfied with her representation before he entered his no-contest plea. See

id. at 9-12.

      For the foregoing reasons, we discern no abuse of discretion in denying

Appellant’s request to withdraw his no-contest plea. See Kpou, 153 A.3d at

1023-24.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2019




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