J-S31001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

ANDRE LEMONT CROMWELL

                            Appellant                 No. 481 WDA 2014


            Appeal from the Judgment of Sentence February 7, 2014
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-CR-0001535-2013


BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                               FILED MAY 25, 2017

        Appellant, Andre Lemont Cromwell, appeals from the judgment of

sentence entered after he pled guilty to robbery1 and recklessly endangering

another person (“REAP”).2 Cromwell contends that the trial court erred in

refusing to allow him to withdraw his guilty plea after sentencing. Further,

Cromwell alleges that he involuntarily entered the guilty plea due to trial

counsel’s ineffectiveness. After careful review, we affirm.

        On May 23, 2013, Cromwell robbed Ruth Blackmon at gunpoint. As a

result, Cromwell was charged with robbery and REAP. The court appointed

Thomas Agrafiotis, Esquire to represent Cromwell.

____________________________________________


1
    18 Pa.C.S.A. § 3701(a)(1)(ii).
2
    18 Pa.C.S.A. § 2705.
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       Between the appointment of counsel and start of trial, Cromwell filed

multiple petitions, including a pro se motion for new counsel and a petition

under Rule 600 seeking nominal bail. The trial court denied Cromwell’s

motion for new counsel, but granted his petition for nominal bail on February

3, 2014. On February 6, 2014, the morning of trial, Cromwell presented an

emergency      motion     for   continuance,     citing   the   defense’s   inability   to

adequately prepare for trial. The trial court denied Cromwell’s motion, and

the Commonwealth presented its case. The next morning, Cromwell entered

a negotiated guilty plea          to   the     above-mentioned     charges and was

immediately sentenced to an aggregate period of five to ten years’

imprisonment.

       On February 18,2014, Cromwell filed a petition to withdraw his guilty

plea. Through his petition, Cromwell claimed that he felt pressure into

pleading guilty, and, therefore, his guilty plea was not knowing, intelligent,

or voluntary. The trial court denied Cromwell’s petition, but appointed him

new counsel. Cromwell appealed.3

       On appeal, Cromwell raises the following issues:

       1. WHETHER THE TRIAL COURT ERRED IN DENYING MR.
          CROMWELL’S REQUEST TO WITHDRAW HIS GUILTY PLEA TO
          5 TO 10 YEARS’ INCARCERATION WHERE THE TOTALITY OF
____________________________________________


3
 Cromwell’s appeal was initially remanded to the trial court after his second
court-appointed counsel failed to file a statement pursuant to Rule 1925(b).
Upon remand, the trial court appointed current counsel, who timely filled a
Rule 1925(b) statement.



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         THE CIRCUMSTANCES REVEAL THE PLEA WAS ENTERED
         INVOLUNTARILY DUE TO THE COERCIVE ATMOSPHERE
         CREATED BY THE MAGNITUDE OF THE POSSIBLE SENTENCE
         MR. CROMWELL FACED – i.e., UP TO 20 YEARS IN JAIL – AND
         COUNSEL’S   CONSTANT     AND    ADMITTED     LACK    OF
         PREPARATION FOR TRIAL?

      2. WHETHER     PLEA    COUNSEL   RENDERED    INEFFECTIVE
         ASSISTANCE TO MR. CROMWELL WHERE COUNSEL’S LACK
         OF ADVOCACY AND PREPARATION CAUSED MR. CROMWELL
         TO ENTER AN INVOLUNTARY GUILTY PLEA TO 5 TO 10 YEARS’
         IMPRISONMENT RATHER THAN FACE A POSSIBLE SENTENCE
         OF 10 TO 20 YEARS’ INCARCERATION?

Appellant’s Brief, at 5.

      We address Cromwell’s second claim of error first. See Appellant’s

Brief, at 29-38. Specifically, Cromwell alleges that trial counsel’s poor

performance caused Cromwell to enter into an involuntary guilty plea. See

id., at 30. However, we decline to reach the merits of this argument as it is

premature.

      Generally, ineffective assistance of counsel claims must be deferred

until collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576

(Pa. 2013). However, our Supreme Court in Holmes set forth two

exceptions to the general rule: (1) where the trial court determines that the

ineffectiveness claim is “both meritorious and apparent from the record so

that immediate consideration and relief is warranted[;] or (2) where the trial

court finds “good cause” for review and the defendant makes a “knowing

and express waiver of his entitlement to seek PCRA review from his

conviction and sentence, including an express recognition that the waiver




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subjects further collateral review to the time and serial petition restrictions

of the PCRA.” 79 A.3d at 564, 577.

      The trial court did not find that Cromwell’s ineffectiveness claim was

readily apparent from the record. Further, there is no indication in the record

that Cromwell made a knowing and intelligent waiver of his entitlement to

seek PCRA review. Thus, neither exception is applicable. Accordingly, we

dismiss Cromwell’s ineffectiveness claims as premature without prejudice to

him   raising   them   in   a   timely   collateral   proceeding.   See,   e.g.,

Commonwealth v. Reid, 117 A.3d 777, 787 (Pa. Super. 2015) (finding

ineffectiveness claims raised on direct appeal were premature pursuant to

Holmes).

      Next, Cromwell challenges the trial court’s denial of his request to

withdraw his guilty plea. See Appellant’s Brief, at 5, 16-28. Specifically,

Cromwell contends that the coercive atmosphere surrounding his guilty plea,

created by “counsel’s poor performance, counsel’s lack of advocacy

throughout the case, counsel’s failure to prepare for trial, and the reality

that [] Cromwell faced a sentence that could be twice the amount to which

he pled guilty,” rendered the plea involuntary. See id., at 28. Due to these

circumstances, Cromwell alleges that the trial court erred by failing to allow

Cromwell to withdraw the plea. See id.,

      ”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,

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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

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

620, 623 (Pa. Super. 2002). Here, Cromwell sought to withdraw his guilty

plea after sentencing.

         Once a 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




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

otherwise.” Id. (citation omitted).

      In addressing Cromwell’s claim, the trial court provided the following

analysis:

      There is no evidence in the record suggesting that [Cromwell]
      entered his plea involuntarily. On the contrary, the record
      provides overwhelming evidence supporting the conclusion that
      [Cromwell] entered his plea knowingly, intelligently, and
      voluntarily, and that he admitted to committing the offenses and
      took responsibility for his actions. The court explained
      [Cromwell’s] rights to him, and made certain that there was a
      factual basis for the plea (Victim’s testimony, including cross-
      examination) and that [Cromwell] understood the nature of the
      charges and the possible sentences he could receive, as is shown
      in [Cromwell’s] extensive verbal and written colloquies.
      Therefore, as [Cromwell] did not enter his plea involuntarily, the
      “manifest injustice” required for a post-sentence withdrawal of a
      guilty plea does not exist in this case, and the trial court thus did
      not err in denying [Cromwell’s] petition to withdraw his plea.

Trial Court Opinion, 11/10/16, at 8-9 (internal citations to the record

omitted).

      After carefully reviewing the record, we agree with the trial court’s

conclusion. Cromwell was advised of his rights and clearly understood the

consequences of his guilty plea. Further, the record belies Cromwell’s claims

that trial counsel’s poor performance led to an involuntary guilty plea.

Cromwell clearly indicated that he was voluntarily entering into the guilty

plea and that he was satisfied with counsel’s performance. The totality of

the circumstances indicates that Cromwell knowingly, intelligently, and




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voluntarily entered into the plea. See Rush, 90 A.2d at 808. Thus, Cromwell

failed to carry his burden of showing “manifest injustice”

      Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/25/2017




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