J. S21040/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA          :     IN THE SUPERIOR COURT OF
                                      :           PENNSYLVANIA
                  v.                  :
                                      :
BRYANT D. STARLING,                   :         No. 2123 EDA 2018
                                      :
                       Appellant      :


      Appeal from the Judgment of Sentence Entered June 19, 2018,
            in the Court of Common Pleas of Delaware County
             Criminal Division at No. CP-23-CR-0002623-2018



COMMONWEALTH OF PENNSYLVANIA          :     IN THE SUPERIOR COURT OF
                                      :           PENNSYLVANIA
                  v.                  :
                                      :
BRYANT STARLING,                      :         No. 2149 EDA 2018
                                      :
                       Appellant      :


      Appeal from the Judgment of Sentence Entered June 19, 2018,
            in the Court of Common Pleas of Delaware County
             Criminal Division at No. CP-23-CR-0002747-2016


BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JULY 11, 2019

     In this consolidated appeal, Bryant Starling appeals from the June 19,

2018 judgments of sentence entered in the Court of Common Pleas of

Delaware County after he entered a negotiated guilty plea to one count each
J. S21040/19

of retail theft and conspiracy1 at No. CP-23-CR-0002623-2018 (“2623-2018”)

for which he received an aggregate sentence 9 to 23 months of incarceration.

Appellant’s guilty plea resulted in revocation of his probation at No. CP-23-

CR-2747-2016 (“2747-2016”). At resentencing on the probation violation at

2747-2016, the trial court sentenced appellant to full back time of 585 days

with immediate parole at Count 2 (retail theft) and imposed a new sentence

of 18 to 48 months of incarceration at Count 1 (theft by deception2) to run

consecutive to the sentence imposed at 2623-2018. We affirm.

        The trial court set forth the following:

                                    []2747-2016

              On April 25, 2016, [appellant] was arrested and
              charged with various offenses, based upon accusations
              made by employees of Lowe’s that he had stolen
              merchandise from its Havertown, PA store.          On
              August 8, 2016, he entered into a negotiated plea
              agreement and was sentenced to a term of 11.5 to
              23 months [of] incarceration on the charge of Theft by
              Deception and two years [of] consecutive probation on
              the charge of Retail Theft.

                                    []2623-2018

              On November 4, 2017, while on parole, a Marple
              Township police officer arrested him for retail theft at
              a Walmart store. He was charged with Retail Theft,
              Receiving Stolen Property and two counts of
              Conspiracy.




1   18 Pa.C.S.A. §§ 3929(a)(1) and 903, respectively.

2   18 Pa.C.S.A. § 3922.


                                        -2-
J. S21040/19


                        Violation of Probation/Parole

           The 2017 arrest came to the attention of the Delaware
           County Adult Probation and Parole Services
           Department, which charged him with a violation of his
           parole/probation.  On June 5, 2018, it issued a
           Gagnon II[3] Hearing Report recommending that
           (1) on the Retail Theft charge, his probation be
           revoked and that he be sentenced to a new
           probationary term of two years, and (2) on the Theft
           by Deception charge, he be sentenced to full back time
           of 585 days.

                           June 19, 2018 Hearing

           The Commonwealth and [appellant] struck a deal on
           the new charges, and on June 19, 2018, [appellant]
           appeared in court for a plea and sentencing on the
           charges pending at []2623-2018 and for a
           Gagnon II/Violation of Probation/Parole hearing on the
           charges at []2747-2016.        Prior to the hearing,
           [appellant] signed and initialed a “Guilty Plea
           Statement,” which included the following paragraph:

           ___ 20.     If I was on probation or parole at
                       the time the crimes to which I am
                       pleading guilty or nolo contendere
                       were committed, my plea(s) in this
                       case mean that I have violated my
                       probation or parole and I can be
                       sentenced to jail for that violation in
                       addition to any sentences which I
                       may receive as a result of these
                       pleas.




3 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v.
Ferguson, 761 A.2d 613 (Pa.Super. 2000) (explaining that when parolee or
probationer is detained pending revocation hearing, due process requires
determination at pre-revocation hearing (Gagnon I hearing) of probable
cause to believe violation was committed, and upon finding of probable cause,
a second, more comprehensive hearing (Gagnon II hearing) follows before
the trial court makes final revocation decision).


                                    -3-
J. S21040/19


          [Appellant] placed     his   initials   to   the   left   of
          number “20.”

          At the hearing, [appellant’s] counsel questioned him at
          length concerning his signing of this document and his
          agreement to the terms of it. This Court asked
          [appellant] if he understood that the Court was not
          bound by any recommendations of the Commonwealth
          or the Parole/Probation Department concerning the
          sentence to be imposed for a violation of his parole and
          probation. [Appellant] answered in the affirmative.
          This Court then accepted the plea and sentenced
          [appellant] according to its terms.

          At the ensuing Violation of Probation hearing, Defense
          counsel stipulated “to time, date notice and violations”
          of the terms of parole and probation. This Court
          rejected the Probation Department’s recommendations
          and sentenced [appellant] on the 2016 charges as
          follows: ([1]) on Count 2, Theft by Deception,
          [appellant] was sentenced to 585 days full back time
          with immediate parole, and ([2]) on Count 1, Retail
          Theft, [appellant] was sentenced to a term of
          incarceration of 18 to 48 months, consecutive to the
          sentence imposed in the 2017 charges.

          [Appellant] and his counsel both strenuously objected
          to the 18 to 48 month sentence, but this Court insisted
          that it had advised [appellant] that it was not bound
          by the recommendations of the Probation/Parole
          Department.      Counsel made an oral motion to
          withdraw the guilty plea, but that motion was denied
          because it was “too late.”

          [Appellant’s] counsel then filed written Motions to
          Withdraw the Guilty Plea and for Reconsideration of
          Sentence. This Court denied both motions.

          On July 18, 2018, [appellant] filed a Notice of Appeal.
          In his Concise Statement of [Errors] Complained of on
          Appeal [pursuant to Pa.R.A.P. 1925(b), appellant’s]
          counsel asserts that (1) the guilty plea was not
          knowingly, voluntarily and intelligently entered into
          due to the court’s imposition of a sentence not in


                                   -4-
J. S21040/19


            accordance with the negotiated terms of the plea, and
            (2) this Court erred when it refused to permit
            [appellant] to withdraw his plea after sentencing him
            in a manner “not in conformance with the negotiated
            plea entered into between his Attorney and the
            Commonwealth of Pennsylvania.”

Trial court opinion, 11/13/18 at 1-3 (record citations omitted). Thereafter,

the trial court filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            I.     WAS THE GUILTY PLEA ENTERED BY THE
                   APPELLANT KNOWING, VOLUNTARY AND
                   INTELLIGENT IN THAT THE APPELLANT
                   ENTERED INTO A NEGOTIATED PLEA AS TO
                   BOTH TRANSCRIPT NUMBERS 2747[-]2016
                   AND 2623[-]2018 AND THE COURT DID NOT
                   SENTENCE IN CONFORMANCE WITH SAID
                   NEGOTIATED PLEA?

            II.    WAS THE TRIAL COURT IN ERROR FOR
                   PREVENTING [APPELLANT] TO WITHDRAW HIS
                   GUILTY PLEA AFTER THE SENTENCE IMPOSED
                   WAS NOT IN CONFORMANCE WITH THE
                   NEGOTIATED PLEA ENTERED INTO BETWEEN
                   HIS ATTORNEY AND THE COMMONWEALTH OF
                   PENNSYLVANIA?

Appellant’s brief at 4.

      “We begin with the principle that a defendant has no absolute right to

withdraw a guilty plea; rather, the decision to grant such a motion lies within

the sound discretion of the trial court.” Commonwealth v. Muhammad,

794 A.2d 378, 382 (Pa.Super. 2002) (citation omitted).         There are two

different standards for reviewing requests to withdraw a guilty plea, one for a

request to withdraw filed prior to sentencing, and one for a request to



                                      -5-
J. S21040/19

withdraw filed after sentencing.     Commonwealth v. Flick, 802 A.2d 620,

623 (Pa.Super. 2002).

      Where, as here, a trial court has imposed a sentence, a defendant may

withdraw his guilty plea “only where necessary to correct a manifest injustice.”

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014) (citation

omitted). “A plea rises to the level of manifest injustice when it was entered

into involuntarily, unknowingly, or unintelligently.” Muhammad, 794 A.2d at

383 (citation omitted). A defendant’s disappointment in the sentence imposed

does not rise to the level of “manifest injustice.” Id. (citation omitted).

              In order for a guilty plea to be constitutionally valid,
              the guilty plea colloquy must affirmatively show that
              the defendant understood what the plea connoted and
              its consequences. This determination is to be made
              by examining the totality of the circumstances
              surrounding the entry of the plea. A plea of guilty will
              not be deemed invalid if the circumstances
              surrounding the entry of the plea disclose 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.

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006) (citation and

brackets omitted). “Our law presumes that a defendant who enters a guilty

plea was aware of what he was doing. He bears the burden of proving

otherwise.”    Commonwwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super.

2003) (citations omitted).

      Here, appellant claims that his plea was not entered into knowingly,

voluntarily, and intelligently because his sentences on both dockets “were



                                       -6-
J. S21040/19

presented to [him] as a package deal”4 and because the trial court did not

sentence him in accordance with the “package deal,” it erred in denying his

motion to withdraw his plea.        The record, however, belies appellant’s

contention.

        The record reflects that appellant executed a written guilty plea

statement wherein he specifically acknowledged that his “plea[] in this case

mean[s] that [he] violated [his] probation or parole and [he] can be sentenced

to jail for that violation in addition to any sentences which [he] may receive

as a result of [his] plea[].” (Appellant’s guilty plea statement, 6/19/18 at 2,

¶ 20.)

        At the guilty plea hearing that immediately preceded the Gagnon II

hearing, the Commonwealth read the following recommendation of Delaware

County’s Probation and Parole Department with respect to resentencing at

2747-2016:

              [THE COMMONWEALTH]: It says -- [appellant’s]
              probation is to be revoked and impose a new sentence
              of two years’ probation and [appellant] is to be
              released to an available bed date at Coatesville VA.
              Now -- and he may have to do full back time of
              585 days that --

              THE COURT: That’s what it looks like it says to me.

              [THE COMMONWEALTH]: Right. To run concurrent to
              the sentence imposed on this case -- the new case.

Notes of testimony, 6/19/18 at 8.


4   Appellant’s brief at 11.


                                      -7-
J. S21040/19

      The following colloquy then took place:

             THE COURT: All right. You understand I’m not bound
             by the recommendation.

             [APPELLANT]: Yes, sir.

             THE COURT: Correct?

             [APPELLANT]: Um-hum.

Id. at 10.

      The record reflects that the trial court imposed an aggregate sentence

of 9 to 23 months of incarceration at 2623-2018 in accordance with a

negotiated guilty plea. Nothing in the record before us, however, supports

appellant’s contention that he entered his guilty plea at 2623-2018 based on

a “package deal” which would result in the imposition of a concurrent two-

year probationary term at 2747-2016 in accordance with the recommendation

of Delaware County’s Probation and Parole Department. Therefore, because

the totality of the circumstances surrounding the entry of appellant’s guilty

plea disclose that appellant fully understood the nature and consequences of

his plea and that he knowingly and voluntarily decided to enter the plea, his

plea is valid.

      Judgments of sentence affirmed.




                                      -8-
J. S21040/19



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/11/19




                          -9-
