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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA             :       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA

               v.


 JENKINS RAKEE EVERETT

                    Appellant              :       No. 942 WDA 2018
        Appeal from the Judgment of Sentence Entered June 4, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0013164-2016

BEFORE:    PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.:                                 FILED JULY 22, 2019
      Appellant Jenkins Rakee Everett appeals from the judgment of sentence

imposed after he pled guilty to voluntary manslaughter-unreasonable belief,
possession of a firearm prohibited, firearms not to be carried without a license,

abuse of a corpse, tampering with physical evidence, and conspiracy.'
Appellant claims that he was entitled to withdraw his plea because he believed

that his sentence would run concurrent to a federal sentence. We affirm.

      The trial court set forth the relevant background to this appeal as
follows:

      The facts of this case establish that    .   Appellant[] shot Earl
                                                   .   .


      Bivins [(the victim)] several times in the early morning hours of
      June 11, 2016, in an apartment in the City of Pittsburgh. Appellant
      and two other individuals then wrapped [the victim's] body in a

* Retired Senior Judge assigned to the Superior Court.

' 18 Pa.C.S. §§ 2503(b), 6105, 6106, 5510, 4910, and 903, respectively.
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      blanket and put the body in a vehicle where they ultimately
      dumped it in a wooded area. At some point later, Appellant
      returned to the body and attempted to burn it. Police ultimately
      found [the victim]'s body on June 26, 2016.

Trial Ct. Op., 8/17/18, at 2. On June 29, 2016, a criminal complaint was filed

and charged Appellant with criminal homicide2 and related offenses.

      At a November 7, 2017 hearing, Appellant requested a postponement

based on a pending federal case. N.T. Postponement Hr'g, 11/7/17, at 3. At

that time, the parties discussed the possibility of having the sentences in the

instant case and the federal case run concurrently. See id. at 4-6. Appellant

asserted that he "was never going to take a postponement if that wasn't the
agreement with the feds and that is what I was understanding of that it would

run concurrent." Id. at 6.
      Appellant's counsel, however, represented:

      I have had discussions with [Appellant]'s federal attorney. The
      idea is to make a determination in federal court whether or not
      the negotiations in a federal sentence will involve whatever that
      might be, whatever the length of the federal sentence might be,
      and whether or not the federal judge would allow you, if you wish
      to, run your sentence, whatever that might be, concurrent with
      the federal judge's sentence. There is no guarantee that the
      federal judge will do that, okay, and to this day I still do not know
      what the U.S. Attorneys, what the final resolution is as to what
      sentence they are suggesting that [Appellant] is to serve. [The
      Commonwealth] tells me one thing, [Appellant] tells me
      something else, the federal attorney tells me something different.
      So until I get a resolution of that it's impossible for me to
      recommend to my client to proceed until I know all of those things.
      The reason for the postponement, Your Honor, is that I don't know
      what's going on down the street. And until that is established, I


2 18 Pa.C.S. § 2501(a).
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      cannot in good conscience recommend any kind of possible
      settlement or resolution because I simply do not believe it's in to
      his advantage in any way to try this case before the federal case
      is   at least, if not resolved, we understand what the federal
      government wants to do.

Id. at 7-8. The trial court granted the postponement.
      On May 19, 2018, Appellant appeared at a guilty plea hearing in the
instant matter.    The parties represented that they had reached a plea
agreement, the terms of which were recited as follows:

      [Commonwealth]:     .  Your Honor, at this[] time the
                              .   .


      Commonwealth moves to amend Count 1, criminal homicide, to
      one count of voluntary manslaughter which is Title 18, Section
      2504. The Commonwealth has agreed to sentencing to be set by
      the Court on Count 1 and any additional sentencing on Counts 2
      through 6 to run concurrent to whatever the Court imposes at
      Count 1.
     THE COURT: And how's it graded?
      [Commonwealth]: It's a felony of the first degree, Your Honor.
      Statutory maximum is 20 years.
     THE COURT: Thank you. [To Appellant's counsel], is that your
     understanding of the plea agreement today?
      [Appellant's Counsel]: Yes, Your Honor. I think there are certain
      additional details that might be added in that there is a dispute
      between the parties as to what my client's prior record score is,
      and that will be evaluated subject to the Pre -Sentence Report and
      a sentencing date. Additionally, this agreement does not
      address the matter as to the consecutive or concurrent
      nature of the sentence.
     THE COURT: All right. And there is an understanding that I can
     deal with this at the time of sentencing?
      [Appellant's Counsel]: Correct.

N.T. Guilty Plea Hr'g, 3/19/18, at 2-3 (emphasis added).


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     Following an extended colloquy, the following exchange occurred:

     [Appellant]: Yes, sir. May I say one thing? The federal case is still
     pending. I'm not sure when my sentence will be imposed and I'm
     not sure if [the federal judge] will impose my sentencing
     concurrent, so I was under the understanding that you wanted the
     best outcome for me, so I was wondering if you could actually wait
     and see till my federal sentence is over with to be sentenced on
     this case.
     [Appellant's Counsel]: That's what's happening, Your Honor. We
     set this sentence date - if I may    .. we set this sentence date
                                              .


     from my understanding from [Appellant]'s federal attorney that
     his federal sentence is going to occur in April.
     THE COURT: So we're coming back here in June, so your federal
     sentence will take place before you come back here for sentencing
     purposes.


     THE COURT: Just for the record, I'm not sure, [to Appellant],
     that I told you that I want the best outcome for you as far
     as you were concerned. I hope that the outcome at
     sentencing is going to be a just and fair one. That's my
     responsibility and that's going to be what I'm going to do. What
     you think and what I think may be different, but you have spoken
     to your lawyer about what we've discussed, so you understand
     that, correct?

     [Appellant]: Yes, sir.



     [Commonwealth]: Your Honor, the only thing I will say is that,
     based on the plea agreement with the Federal Government, the
     Commonwealth went down to a voluntary manslaughter with the
     objective of objecting to a concurrent sentence. I understand the
     [c]ourt can do it despite my objection. I understand the [f]ederal
     [c]ourt can do it, but I want the Court to understand we did not
     agree to a concurrent sentence when we went down to voluntary
     manslaughter. It's a general plea agreement for sentencing, and
     the Commonwealth will be asking for consecutive time, and
     I want [Appellant] to understand that as we are here today, but I

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      don't know what the        [c]ourt and     ultimately the    Federal
      Government will do.
      THE COURT: Anything else [to Appellant's counsel]?
      [Appellant's Counsel]: I understood.
      THE COURT: And obviously, without beating a dead horse, I've
      not agreed or represented an agreement to whether or not
      sentence can be concurrent or consecutive. So we'll see you
      back here on June the 4th, 2018, maybe before, maybe after
      depending.

Id. at 20-22, 24-25 (emphases added).

      The trial court summarized the remaining procedural history of this case

as follows:

      On April 12, 2018, Appellant ple[]d guilty in his federal case before
      the Honorable Judge Nora B[a]rry Fischer to one count of
      conspiracy to possess with intent to distribute and distribute
      heroin at CR No. 6-00195-008. On April 12, 2018, Judge Fischer
      sentenced Appellant to seventy (70) months imprisonment,
      leaving discretion to the undersigned [trial judge] to determine
      whether Appellant's sentence in the case sub judice would be
      served concurrently or consecutively to Appellant's federal
      sentence.
      On June 4, 2018, th[e trial c]ourt sentenced Appellant to seven
      (7) years and six (6) months to seventeen (17) years at Count
      One (voluntary manslaughter-unreasonable belief) said sentence
      to run consecutively to Appellant's federal sentence. On Count
      Two (possession of firearm prohibited), Count Three (firearms not
      to be carried without a license), and four (abuse of a corpse), th[e
      c]ourt sentenced Appellant to two (2) to four (4) years at each
      count to run consecutively to his federal sentence [but
      concurrent to Count One]. At Count Five (tamper with/fabricate
      physical evidence) and Count Six (conspiracy- abuse of corpse),
      th[e c]ourt sentenced Appellant to two (2) years of probation at
      each count.

Trial Ct. Op. at 2-3 (some capitalization omitted and emphasis in original).



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        At the conclusion of the sentencing hearing, the following exchange
occurred:

        THE COURT: Do you understand your sentence?
        [Appellant]: No, sir.
        THE COURT: Why don't you understand your sentence?
        [Appellant]: I don't understand my sentence because you actually
        promised me something.
        THE COURT: All right. That's not not [sic] understanding my
        sentence. [Your counsel] will explain to you -
        [Appellant]: Excuse me.
        THE COURT: -- I've heard from you about what my promise to
        you allegedly was. I don't agree with you. There was no promise
        with respect to consecutive or concurrent sentence.
        Do you understand your sentence outside of that issue?
        Do you understand your sentence?
        [Appellant]: No, sir. I actually -- I want to actually ask you for
        reconsideration.

N.T. Sentencing Hr'g, 6/4/18, at 36.

        Appellant filed timely post -sentence motions seeking,      in   part, to

withdraw his plea based on his belief that there was a promise that his
sentence would run concurrent to his federal sentence. Post -Sentence Mot.,

6/11/18, at ¶ 4(b). The trial court denied Appellant's motion on June 12,
2018.

        Appellant timely appealed and complied with the trial court's order to
file and serve a Pa.R.A.P. 1925(b) statement. The trial court filed a responsive

Rule 1925(a) opinion.

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      In its opinion, the trial court concluded that it properly denied

Appellant's post -sentence motion to withdraw his plea. Trial Ct. Op. at 4. The

trial court noted that the record contradicted Appellant's contention that there

was an agreement or promise to impose a sentence concurrent to his federal

sentence. The court emphasized that "Appellant was forewarned that no such

agreement existed at the time of his plea[,]" and could have withdrawn his
plea earlier rather than testing the trial court's sentence. Id. at 5.

      On appeal, Appellant presents a single question for review: "Whether
the trial court abused its discretion when it failed to allow [him] to withdraw
his guilty plea?" Appellant's Brief at 3. Appellant claims that his "plea was
not knowingly, voluntarily and intelligently entered as [he] stated several
times on the record that he did not understand the plea." Id. at 9.          He

maintains that he was promised that his sentences in the instant case and the

federal case would run concurrently.   Id. at 11.
      According to Appellant, he would not have entered a plea "[h]ad such a

promise not been made." Id. Appellant emphasizes that at sentencing, he

repeatedly asserted his belief that he was entitled to a sentence concurrent to

his federal sentence.   Id. In short, Appellant asserts that "the trial court
should have granted [his] motion to withdraw his guilty plea, or at the very
least conducted a hearing on his post -sentence motion to determine if the
argument was meritorious." Id. at 12.

      The principles governing our review are well settled. "A trial court's
decision regarding whether to permit a guilty plea to be withdrawn should not

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be upset absent an abuse of discretion." Commonwealth v. Pardo, 35 A.3d
1222, 1227 (Pa. Super. 2011) (citation omitted).

     Although no absolute right to withdraw a guilty plea exists in
      Pennsylvania, the standard applied differs depending on whether
      the defendant seeks to withdraw the plea before or after
      sentencing. When a defendant seeks to withdraw a plea after
      sentencing, he must demonstrate prejudice on the order of
      manifest injustice. [A] defendant may withdraw his guilty plea
      after sentencing only where necessary to correct manifest
      injustice..   .Thus, post -sentence motions for withdrawal are
                        .


      subject to higher scrutiny since the courts strive to discourage the
      entry of guilty pleas as sentence -testing devices.
                                  *    *    *

      Manifest injustice occurs when the plea is not tendered knowingly,
      intelligently, voluntarily, and understandingly. In determining
      whether a plea is valid, the court must examine the totality of
      circumstances surrounding the plea. 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.

Commonwealth v. Hart, 174 A.3d 660, 664-65 (Pa. Super. 2017) (citations
and quotation marks omitted). Furthermore, "the law does not require that a
defendant be pleased with the outcome of his decision to plead guilty. The

law requires only that a defendant's decision to plead guilty be made
knowingly, voluntarily, and intelligently." Commonwealth v. .7abbie, 200
A.3d 500, 506 (Pa. Super. 2018) (citation omitted).

      Instantly, it is apparent that Appellant delayed entering his plea in the
instant case in the hope that the sentences could run concurrent to the
sentence in his federal case. See N.T. Postponement Hr'g at 4-6. However,

we find no record support for Appellant's assertion that there was a promise


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that the sentences in the instant case and the federal case would run
concurrently. See N.T. Guilty Plea Hr'g at 20-22, 24-25. To the contrary, the

trial court repeatedly clarified that no such promise existed.       See id.
Therefore, we agree with the trial court that Appellant failed to demonstrate
manifest injustice requiring the post -sentence withdrawal of his plea. See
Pardo, 35 A.3d at 1227.
     Judgment of sentence affirmed.

Judgment Entered.


    -;2.1ebt-JXP(teix--
J seph D. Seletyn, Es
Prothonotary
                        ,
Date: 7/22/2019




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