J-S03006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN E. LONGENDORFER, III                  :
                                               :
                       Appellant               :   No. 401 WDA 2019

       Appeal from the Judgment of Sentence Entered September 10, 2018
      In the Court of Common Pleas of Venango County Criminal Division at
                        No(s): CP-61-CR-0000784-2017


BEFORE:      McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.:                              FILED MAY 27, 2020

        John E. Longendorfer, III, appeals from the judgment of sentence

entered following his guilty plea to one count of theft by deception-false

impression and two counts each of conspiracy and identity theft.1 He raises

an ineffectiveness claim and argues that the trial court improperly denied his

continuance requests and should have allowed him to withdraw his guilty plea.

We affirm.

        The history of this case germane to this appeal is as follows. After the

Commonwealth filed charges against Longendorfer, the court appointed

counsel. In July 2018, he filed a Motion to Proceed Pro Se/Waiver of Counsel.

The trial court did not immediately address the motion and instead scheduled


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. §§ 3922(a)(1), 903, and 4120(a), respectively.
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Longendorfer’s trial for September 2018, stating that it would address the

motion at jury selection. Id.

      On the day of jury selection, the court held a hearing on Longendorfer’s

motion. Longendorfer told the court, “I want to do a plea bargain with the D.A.

on my own. So, yes, I’ll represent myself.” Defendant’s Motion to Proceed Pro

Se Hearing (“Pro Se Hearing”), 9/10/18, at 10. The court colloquied

Longendorfer and allowed him to represent himself and plead guilty to the

above-referenced crimes. The court then sentenced him to seven to 15 years’

incarceration. Longendorfer filed a motion to withdraw his guilty plea and a

motion to modify his sentence, both of which were denied by operation of law.

This timely appeal followed.

      Longendorfer raises the following issues on appeal:

         1. Whether [Longendorfer’s] waiver of his fundamental
            constitutional right to counsel was not knowingly,
            intelligently, and voluntarily made and he was in essence
            forced against his will to proceed pro se by his court-
            appointed counsel’s focus on having him plead guilty
            coupled with her failure to obtain and properly
            investigate available evidence of his innocence to present
            to a jury during trial, which counsel was clearly intent on
            avoiding, contrary to [Longendorfer’s] express wishes?

         2. Whether [Longendorfer] was improperly denied his right
            to meaningfully represent himself and present a robust
            and complete defense by the trial court’s unreasonable
            denial of his requests for a continuance to secure
            available evidence that would have established his
            innocence, which prison officials had in their possession
            and negligently failed to ship with [Longendorfer] when
            he was transported to Venango County, Pennsylvania, for
            trial in this case?



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         3. Whether the trial court erred and abused its discretion in
            denying [Longendorfer’s] timely filed motion to withdraw
            his guilty plea where the plea was unlawfully induced by
            the court’s arbitrary and unreasonable denial of his
            request for a continuance to obtain the evidence of his
            innocence necessary to enable him to effectively defend
            himself against the charges?

Longendorfer’s Br. at 5-6.

      Longendorfer first maintains that he was forced to plead guilty because

of the alleged failure of his counsel, Attorney Jeri Bolton, to investigate and

obtain exculpatory evidence. This is in substance a claim that guilty plea

counsel was ineffective. Ineffectiveness claims are not properly before this

Court on direct appeal, and “absent either good cause or exceptional

circumstances and a waiver of [Post Conviction Relief Act (PCRA)] review,”

such claims “must await collateral review.” Commonwealth v. Britt, 83 A.3d

198, 203 (Pa.Super. 2013). As this is Longendorfer’s direct appeal, and he

has not shown good cause or exceptional circumstances, or waived PCRA

review, we cannot consider this claim.

      Next, Longendorfer claims that the trial court erred by denying his

request for a continuance to obtain allegedly exculpatory evidence. He

maintains the denial of the continuance had the effect of denying him his right

to meaningful self-representation. See Longendorfer’s Br. at 5-6.

      We review the denial of a continuance for an abuse of discretion. See

Commonwealth v. Broitman, 217 A.3d 297, 299 (Pa.Super. 2019). “This

Court will not find an abuse of discretion if the denial of the continuance

request did not prejudice the appellant.” Id. An appellant shows prejudice

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where he is “‘able to show specifically in what manner he was unable to

prepare his defense or how he would have prepared differently had he been

given more time.’” Id. at 300 (citing Commonwealth v. Ross, 57 A.3d 85,

91 (Pa.Super. 2012)).

      Here, Longendorfer argues that there was evidence of his innocence

“which prison officials at SCI-Smithfield had failed to send him when he was

transported to Venango County for trial. . . .” Longendorfer’s Br. at 34-35. He

maintains that because the trial court failed to grant him a continuance, he

was “forced against his will to accept the Commonwealth’s plea agreement. .

. .” Id. at 35. Longendorfer’s claim that he was “forced against his will” to

enter into the plea agreement contradicts his statements in his written and

oral guilty plea colloquies to the contrary. Moreover, he has not informed us

of the nature of the allegedly exculpatory evidence that he claims a

continuance would have enabled him to obtain. In so doing, he has failed to

demonstrate prejudice. Broitman, 217 A.3d at 300. This claim is meritless.

      In his third claim, Longendorfer continues on the same theme and

maintains that the trial court should have allowed him to withdraw his guilty

plea because “the plea was unlawfully induced by the trial court’s arbitrary

and unreasonable denial of his request for a continuance to obtain the

evidence of his innocence necessary to enable him to effectively defend

himself after the charges.” Longendorfer’s Br. at 38. He alleges that “[r]ight

after the trial court granted [Longendorfer] leave to proceed pro se,

[Longendorfer] was approached by the prosecutor and offered a plea deal.”

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Id. at. 40-41. “The prosecutor informed [Longendorfer] that he had to decide

right then to accept the offered plea deal and that, if he refused, the case

would proceed to trial on all the charges. . . .” Id. at 41. He argues that

because of this he “found himself the victim of a vicious trial by ambush.” Id.

      “It is well-settled that the decision whether to permit a defendant to

withdraw a guilty plea is within the sound discretion of the trial court.”

Commonwealth v. Hart, 174 A.3d 660, 664 (Pa.Super. 2017). “When a

defendant seeks to withdraw a plea after sentencing, he ‘must demonstrate

prejudice on the order of manifest injustice.’” Id. (quoting Commonwealth

v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011)).

      Here, Longendorfer failed      to demonstrate      anything approaching

manifest injustice. First, as above, his claim that he was unfairly cornered into

pleading guilty by the denial of the continuance fails because he has not

identified the allegedly exculpatory evidence that he says he needed a

continuance to get. Second, the fact that the prosecutor gave him little time

to make the difficult decision of whether to accept the plea deal or go to trial

is no reason for us to require the trial court to allow Longendorfer to withdraw

his plea. Being put to a hard choice is not manifest injustice.

      Third, although he alleges that he asked the court for a continuance to

obtain further evidence of his alleged innocence, he nonetheless decided to

plead guilty, despite the court’s refusal to grant a continuance. The record

shows that he willingly pleaded guilty. He told the court during the hearing on

the day of jury selection, “I woulda [sic] worked a deal out with the D.A. a

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long time ago if he would just sit down and give me the benefit of the doubt

on some of the charges.” N.T., Pro Se Hearing, at 7. The prosecutor responded

that he had visited the prison twice to speak with Longendorfer to convey an

offer to him. Longendorfer did not dispute that statement. Instead, he replied,

“I want to do a plea bargain with the D.A. on my own. So, yes, I’ll represent

myself.” Id. at 10. The record thus shows Longendorfer willingly moved

forward with his plea rather than proceed with trial, despite not getting the

continuance. The trial court did not abuse its discretion in denying

Longendorfer’s motion to withdraw his guilty plea. We affirm the judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2020




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