J-S55041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ANGEL FERDINAND GIL

                            Appellant               No. 566 EDA 2014


          Appeal from the Judgment of Sentence September 6, 2013
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0000420-2013
                           CP-39-CR-0000422-2013
                           CP-39-CR-0000423-2013


BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED FEBRUARY 10, 2015

       Angel Ferdinand Gil appeals from the judgment of sentence entered in

the Lehigh County Court of Common Pleas on September 6, 2013, made

final by the denial of Gil’s post-sentence motion to withdraw his guilty plea

on January 21, 2014.1 The trial court imposed an aggregate sentence of 18

to 36 months’ incarceration, followed by three years’ probation, after Gil

entered a guilty plea in three separate cases to charges of robbery, criminal

conspiracy to commit robbery, and criminal trespass.2        On appeal, Gil
____________________________________________


1
  Gil's notice of appeal purports to appeal from the January 21, 2014, order
denying his motion to withdraw his guilty plea. “However, a direct appeal in
a criminal case can only lie from the judgment of sentence.”
Commonwealth v. Lawrence, 99 A.3d 116, 117 (Pa. Super. 2014)
(citation omitted). Therefore, we have amended the caption accordingly.
2
  18 Pa.C.S. §§ 3701(a)(1)(iv), 903, and 3503(a)(1)(i), respectively.
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challenges the voluntariness of his guilty plea. For the following reasons, we

affirm.

      The facts leading to the charges in the three cases on appeal are as

follows. On October 3, 2012, Gil, Denisse Guzman, and Daquasia Ransome,

traveled to Emmaus, Pennsylvania, in Gil’s car. At the time, Guzman was

Gil’s girlfriend. After the three conspired to commit a robbery, Ransome left

the car and threatened a 16-year-old female at knifepoint.            In the

meantime, Gil backed his car into an alleyway to conceal his license plate.

The victim turned over her iPhone to Ransome, who later returned to Gil’s

car. The three culprits fled the scene and Ransome kept the phone.

      Three days later, in Allentown, Pennsylvania, Gil and Guzman robbed a

college student of her iPad and iPhone. Guzman threatened the victim with a

knife and demanded the devices. Although the victim initially resisted, she

relented after Gil exited a nearby car, displayed a knife, and directed

Guzman to get in the vehicle.      The two fled with the victim’s iPad and

iPhone.

      After the victim reported the robbery, the police tracked the iPhone,

through a “Find My iPhone” mobile application, to a house on Washington

Street.   The police obtained a warrant to search the residence and, upon

arrival, discovered that Gil and Guzman had tied bed sheets together and

fled from a second floor window.     They were eventually discovered in a

neighbor’s garage hiding under a vehicle.     Guzman subsequently gave a

statement to police, admitting her complicity and claiming that Gil had asked

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her to rob the college student after witnessing Ransome’s success a few

days earlier.

        Gil was arrested and charged as follows. At Docket No. 420-2013, he

was charged with robbery, theft, receiving stolen property, simple assault,

and criminal conspiracy3 for the robbery of the 16-year-old victim.                  At

Docket No. 422-2013, Gil was charged with robbery, theft, receiving stolen

property, possession of an instrument of crime, and criminal conspiracy 4 for

the robbery of the college student. Lastly, at Docket No. 423-2013, Gil was

charged with criminal trespass5 for breaking into his neighbor’s garage.

        On September 6, 2013, Gil entered a negotiated guilty plea to charges

of criminal conspiracy to commit robbery (Docket No. 420-2013), robbery

(Docket No. 422-2013), and criminal trespass (Docket No. 423-2013).6 In

____________________________________________


3
   18 Pa.C.S.      §§    3701(a)(1)(ii),       3921(a),   3925(a),   2701,   and   903,
respectively.
4
   18 Pa.C.S.       §§   3701(a)(1)(ii),       3921(a),   3925(a),   907,    and   903,
respectively.
5
    18 Pa.C.S. § 3503(a)(1)(i).
6
  Gil was originally charged with robbery and conspiracy to commit robbery
as felonies of the first degree pursuant to 18 Pa.C.S. § 3701(a)(1)(ii) and
(b)(1). See Docket No. 420-2013, Criminal Information, 2/4/2013, Count
5; Docket No. 422-2013, Criminal Information, 2/4/2013, Count 1.
However, during the plea hearing, the Commonwealth amended the
informations so that grading of the crimes was reduced to felonies of the
second degree. See N.T., 9/6/2013, at 37-38; 18 Pa.C.S. § 3701(a)(1)(iv)
and (b)(1).




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exchange for the plea, the Commonwealth withdrew the remaining charges,

and agreed to concurrent sentences with a minimum sentence of 18 months’

imprisonment.      As part of the plea agreement, Gil also agreed to proceed

with sentencing that same day, and waive his right to a presentence

investigation. After a lengthy plea and sentencing hearing,7 the trial court

accepted Gil’s guilty plea and imposed the following sentences: (1) a term

of 18 to 36 months’ imprisonment, followed by three years’ probation for

robbery; (2) a term of 14 to 35 months’ imprisonment followed by three

years’ probation for criminal conspiracy; and (3) a term of one month to 36

months’ imprisonment, followed by three years’ probation for criminal

trespass. Pursuant to the plea agreement, the court imposed the sentences

to run concurrently to each other.

       Thereafter, Gil filed a timely pro se post-sentence motion to withdraw

his guilty plea.8         Upon’s Gil’s request, plea counsel was relieved of
____________________________________________


7
   We note that the transcript from the hearing spans 102 pages, and
includes two recess breaks when Gil was permitted to consult with his
mother and counsel. Moreover, although the Commonwealth originally
offered Gil a minimum sentence of 20 months’ imprisonment, he was able to
negotiate that minimum down to 18 months’ imprisonment. See N.T.,
9/6/2013, at 6, 9-11, 40-41.
8
  A post sentence motion must be filed no later than 10 days after the
imposition of sentence. Pa.R.Crim.P. 720(A)(1). Although Gil’s motion was
docketed on September 19, 2013, the envelope the motion arrived in is date
stamped September 16, 2013. “Under the ‘prisoner mailbox rule,’ we deem
the statement as filed on the date [Gil] presented it to prison authorities for
mailing. Commonwealth v. Robinson, 12 A.3d 477, 479 n.2 (Pa. Super.
2011). Accordingly, we consider Gil’s motion to have been timely filed.




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representation, and new counsel was appointed.               Following a hearing on

January 21, 2014, the trial court denied Gil’s motion, and this timely appeal

followed.9

       Gil’s sole issue on appeal challenges the trial court’s denial of his

motion to withdraw his guilty plea.            Specifically, Gil contends that at the

time he entered his plea, he was “on mind altering drugs which caused him

to be agitated and unable to focus.”                Gil’s Brief at unnumbered 13.

Furthermore, he insists he was “pushed to accept the offer that day” without

sufficient time to consider the alternatives, and dependent upon the waiver

of his right to a presentence investigation.          Id.   Gil also asserts that his

attorney “threatened him with much greater sentences if he did not accept

the Commonwealth’s offer.”            Id.      Accordingly, he argues that he has

demonstrated “prejudice on the order of manifest injustice” because his plea

was entered unknowingly, unintelligently and involuntarily. Id.

       When a defendant enters a guilty plea, he waives the right to

challenge on appeal “all non-jurisdictional defects except the legality of the

sentence and the validity of the plea.”            Commonwealth v. Lincoln, 72

A.3d 606, 609 (Pa. Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014).

Furthermore, when a defendant seeks to withdraw a plea after sentencing,
____________________________________________


9
   On February 24, 2014, the trial court ordered Gil to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Gil complied with the court’s directive, and filed a concise statement on
March 14, 2014.



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he must demonstrate “prejudice on the order of manifest injustice before

withdrawal is justified.” Commonwealth v. Yeomans, 24 A.3d 1044, 1046

(Pa. Super. 2011) (citation omitted). “A plea rises to the level of manifest

injustice   when     it   was    entered       into   involuntarily,   unknowingly,   or

unintelligently.” Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super.

1999), appeal denied, 764 A.2d 1068 (Pa. 2000).

       However, “[o]ur 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.”     Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super.

2006) (citation omitted). Indeed, “[w]here the record clearly demonstrates

that a guilty plea colloquy was conducted, during which it became evident

that the defendant understood the nature of the charges against him, the

voluntariness of the plea is established.”            Stork, supra, 737 A.2d at 790

(citation and internal quotation marks omitted).

       First, Gil contends he was taking Sinequan,10 a “mind altering drug,”

on the day of his guilty plea hearing, which caused him to be unfocused and

agitated. Gil’s Brief at unnumbered 13. Gil did not include this argument in

his Pa.R.A.P. 1925(b) concise statement, and, for that reason, it is waived




____________________________________________


10
  Sinequan is “used to treat mental/mood problems such as depression and
anxiety.” http://www.webmd.com/drugs.




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on appeal.11     See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)

(“[A]ny issues not raised in a Rule 1925(b) statement will be deemed

waived[.]”).

        Next, Gil contends he was “forced to make a decision” on the plea

agreement “without adequate time to consider the alternatives.” Gil’s Brief

at unnumbered 13. Moreover, he asserts:

        Had he not been forced to waive his presentence investigation,
        he would have had an opportunity to consider the alternatives,
        and the ability to withdraw his plea prior to sentencing at which
        time the standard would have been much easier to meet.

Id.12

        Again, we find his claim is belied by the record from the plea hearing.

Although the plea agreement was time-sensitive, as well as contingent upon

Gil’s waiver of a presentence investigation, the trial court provided Gil with
____________________________________________


11
   We note that even if we were to address this claim, we would conclude
that it is meritless. During the guilty plea colloquy, Gil informed the trial
court that he had taken his prescribed dosage of Sinequan within the last 24
hours. N.T., 9/6/2013, at 46-47. However, when the court inquired
whether the medication would “interfere with [his] ability to understand
what’s going on here today[,]” Gil responded, “No, Your Honor.” Id. at 47.
It is well-settled that a defendant who enters a guilty plea “is bound by the
statements he makes in open court while under oath and he may not later
assert grounds for withdrawing the plea which contradict the statements he
made at his plea colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523
(Pa. Super. 2003) (citation omitted).
12
    “A pre-sentence motion to withdraw a guilty plea should be liberally
allowed and should be granted for any fair and just reason unless granting
the motion would cause substantial prejudice to the Commonwealth.”
Commonwealth v. Gordy, 73 A.3d 620, 623-624 (Pa. Super. 2013),
appeal denied, 87 A.3d 318 (Pa. 2014)




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every opportunity to fully consider and/or decline the Commonwealth’s offer.

Indeed, the court recessed twice while Gil was given the opportunity to call

his mother and, later, to discuss the plea agreement with his attorney. See

N.T., 9/6/2013, at 19, 36. Although he requested more time to consider the

offer, the Commonwealth refused to extend the offer past the day of the

hearing. Moreover, before proceeding to the sentencing part of the hearing,

the trial court, again, gave Gil the opportunity to withdraw his plea, if he

decided not to waive his right to a presentence investigation. Id. at 82. Gil

declined to do so. Id. at 83. On appeal, he is “bound by the statements he

makes in open court while under oath” and is not permitted to “later assert

grounds for withdrawing the plea which contradict the statements he made

at his plea colloquy.” Pollard, supra, 832 A.2d at 523. Therefore, Gil is

entitled to no relief on this claim.

      Lastly, Gil asserts his attorney “threatened him with much greater

sentences if he did not accept the Commonwealth’s offer.”       Gil’s Brief at

unnumbered 13.

      A review of the plea transcript reveals, however, Gil clearly indicated

he was satisfied with the representation of his attorney, and he was neither

forced nor threatened to accept the plea agreement. The following excerpt

is instructive:

            THE COURT:        Are you satisfied with [your attorney’s]
      representation?

             MR. GIL: Yeah.



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           THE COURT: Are you sure?

           MR. GIL: Yeah, Your Honor.

           THE COURT: Okay. Now, listen, you’re under oath, we’re
     having a, hopefully, an open conversation. Now is the time, if
     you haven’t had enough time, if you’re not satisfied, if you don’t
     want to do it, if that’s not your understanding of what the plea
     agreement is, now is the time to say it because I am accepting
     all your answers as truthful.

           MR. GIL: Yes, Your Honor.

           THE COURT: So, are you satisfied with your attorney?

           MR. GIL: I’m not really satisfied, Your Honor.

           THE COURT: Okay.

           MR. GIL: I believe he did the best he can do.

           THE COURT: Okay. Fair enough. …

                                     ***

            THE COURT: Mr. Gil, did Mr. Vedomsky force you to take
     this plea agreement?

           MR. GIL: No, Your Honor.

           THE COURT: Okay. Has anybody forced or threatened
     you to take this plea agreement?

           MR. GIL: Not at all, Your Honor.

           THE COURT: Okay. And has anybody made any promises
     to you about my sentences, other than what we’ve spoken about
     here in court?

           MR. GIL: No, Your Honor.

N.T., 9/6/2013, at 59-60. Therefore, Gil’s statements during the guilty plea

colloquy belie his claims on appeal. We reiterate:

     The longstanding rule of Pennsylvania law is that a defendant
     may not challenge his guilty plea by asserting that he lied while
     under oath, even if he avers that counsel induced the lies. A
     person who elects to plead guilty is bound by the statements he

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      makes in open court while under oath and he may not later
      assert grounds for withdrawing the plea which contradict the
      statements he made at his plea colloquy.

Pollard, supra, 832 A.2d at 523 (citations omitted). Accordingly, no relief

is warranted on this claim.

      Because we find that Gil’s challenges to the voluntariness of his guilty

plea are belied by the record, we conclude the trial court did not abuse its

discretion in denying Gil’s post sentence motion to withdraw his plea.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




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