J-A09003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CURTIS MICHAEL RAMEY, SR.                  :   No. 261 WDA 2019

                Appeal from the Order Entered January 22, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0006078-2018


BEFORE:      SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                                 FILED JULY 21, 2020

        The Commonwealth appeals an order of the Allegheny County Common

Pleas Court dismissing all charges against Curtis Michael Ramey, Sr., Appellee.

We reverse and remand.1

        The trial court explained the procedural history as follows:

              On January 22, 2019, [Appellee] appeared before Judge
        McDaniel to enter a general guilty plea to the charges filed against
        him. [Appellee] intended to plead guilty to violating 18 Pa.C.S.A.
        § 6105(a)(1) (person not to possess a firearm), 18 Pa.C.S.A.
        § 2701(a)(1) and (a)(3) (simple assault)[,] and 18 Pa.C.S.A.
        § 2705 (recklessly endangering another person). During the
        guilty plea colloquy, while explaining the maximum penalties
        facing him, [Judge McDaniel] advised [Appellee]:

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1  The order appealed was entered by the Honorable Donna Jo McDaniel.
Merely days later, this case was assigned to the Honorable Anthony M. Mariani
after Judge McDaniel retired.
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           Do you understand you have been previously
           convicted of a felony under the drug act and,
           therefore, you are a person not to possess a firearm
           although you had a firearm within your control...[?]

                                [* * *]

           [Appellee]: Yes, Your Honor.

     [N.T., 1/22/19, at 2–3.]

                                  [* * *]

     [Pursuant to Judge McDaniel’s direction, t]he Commonwealth then
     advised the [plea c]ourt:

           If this case were to proceed to trial the state would
           call Officer Benjamin Bernhard, B -E -R -N -H -A -R -
           D- and Officer Aaron Gardocki, G -A -R -D -O -C -K -
           I, James Bailey[,] and Michelle Lawson[,] who would
           collectively testify that on April 18, 2018[,] officers
           were dispatched to [Appellee’s] home where he had
           pointed a shotgun at a guest at approximately 12:45
           a.m. [Appellee], James Bailey [(“the victim”)] and
           Michelle Lawson were socializing when—

     [N.T., 1/22/19, at 4.]

     Judge McDaniel interrupted and asked [the] Commonwealth’s
     counsel to slow down. The assistant district attorney then
     continued:

           When the parties were socializing the conversation
           turned to a dis-favorable topic.       At that point
           [Appellee] went upstairs, grabbed a shotgun and went
           downstairs and pointed it at the victim. He then
           proceeded to kick [the victim] out of his house by
           pushing him down concrete stairs. The state would
           rest.

     Judge McDaniel asked defense counsel if she had any additions or
     corrections to which defense counsel responded that she did not.
     Judge McDaniel then asked if there was a plea agreement reached
     between the parties.     When defense counsel responded by

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     advising Judge McDaniel that a plea agreement could not be
     reached but she wished to present mitigating information on
     behalf of [Appellee], Judge McDaniel stated[:]

           Well, unfortunately, the Commonwealth did not put in
           its summation the fact that [Appellee] has a prior
           conviction for felony drugs, therefore, it has not met
           the requirement of a person not to possess and I will
           dismiss the charges.

     [N.T., 1/22/19, at 5.]

     In her formal written order, Judge McDaniel wrote[:]

           This Honorable Court hereby dismisses case (sic) due
           to insufficient evidence presented during [the]
           Commonwealth’s summary of the facts.

     The Commonwealth filed an appeal[,] and on appeal it alleges that
     Judge McDaniel erred by dismissing all charges against [Appellee].
     Based on the record, this [c]ourt is constrained to agree[,] and it
     believes Judge McDaniel’s order should be reversed and
     the case remanded to this [c]ourt for further proceedings.

Pa.R.A.P. 1925(a) Opinion, 6/25/19, at 1–3 (emphasis added).

     Judge McDaniel retired a few days after she dismissed these charges,

and this case was transferred to Judge Mariani, who issued a Pa.R.A.P. 1925

order. Both the Commonwealth and Judge Mariani complied with Rule 1925.

     The Commonwealth asserts the following issue on appeal: “Whether

the [plea] court erred in refusing to accept the guilty plea to charges of

[violations of the Uniform Firearms Act] VUFA, [s]imple assault and

[r]ecklessly endangering another person and then ordering those charges to

be dismissed?” Commonwealth’s Brief at 5.




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      The Commonwealth argues that it was disingenuous of Judge McDaniel

to state that the Commonwealth had not established that Appellee had a prior

felony drug conviction, in that Judge McDaniel “stated that very fact on the

record at the beginning of the proceeding.” Commonwealth’s Brief at 14–15.

Referencing   Pa.R.Crim.P.     590,   “Pleas   and    Plea   Agreements,”      the

Commonwealth acknowledges that while a trial court must determine whether

there is a factual basis for the plea, “that requirement does not demand a

rigidity that borders on the ridiculous.” Id. at 15. The Commonwealth asserts

that without prompting from anyone, the plea court “informed [A]ppellee that

he had a prior drug conviction which made him ineligible to possess a firearm.”

Id. The Commonwealth maintains that while the prosecutor “did not repeat

that fact in her summation, it was a fact that no one disputed.” Id.

      Appellee responds that the Commonwealth failed to prove every

element of the charged crimes, ignoring and discounting that Judge McDaniel

“took notice” of Appellee’s prior felony drug offense; Appellee suggests it was

not the judge’s “duty.” Appellee’s Brief at 13. Appellee contends:

      The Commonwealth failed to put in its factual summation that
      [Appellee] had a prior felony drug conviction. Without mention of
      this material element of the crime of Persons Not to Possess a
      Firearm by the Commonwealth to [Appellee], . . . Judge McDaniel
      was correct in her determination that [Appellee’s] plea would not
      have been voluntary and understandingly tendered, because the
      Commonwealth failed to present to him the fact that they would
      be presenting his prior conviction as evidence against him in
      support of his Persons Not to Possess Charge. [Pa.R.Crim.P.] 591
      permit[s] judges to withdraw a guilty plea sua sponte, and
      allow[s] the substitution of a plea of not guilty. . . . The
      substitution of a plea of not guilty by the fact-finder is unnecessary

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      in the case at hand when the Commonwealth failed to assert a
      material element of a crime they are prosecuting.

Appellee’s Brief at 15.

      We agree with Judge Mariani that there was no legal justification for

Judge McDaniel’s dismissal of all of the charges. As Judge Mariani noted, the

fact that Appellee previously had been convicted of a felony drug offense “was

of no consequence to the elements of the two simple assault offenses and the

charge of recklessly endangering another person.” Pa.R.A.P. 1925 Opinion,

6/25/19, at 3–4. With respect to the VUFA charge, Judge McDaniel, herself,

specifically informed Appellee that he had been previously convicted of the

predicate felony for that offense, and Appellee did not object to that

statement.   Id. at 4.    As Judge Mariani maintained, the remaining factual

allegation that Appellee brandished a shotgun was sufficient to establish that

Appellee was a person not to possess a firearm. As Judge Mariani opined:

      [T]his [c]ourt could find no legal authority that authorizes a trial
      court to dismiss a charge when a trial court believes the
      Commonwealth fails to establish a factual basis for a guilty plea.
      In this [c]ourt’s view, the proper protocol would have been to
      reject [Appellee’s] attempt to plead guilty and set the case for
      trial. Rule 590 of the Pennsylvania Rules of Criminal Procedure
      govern[s] guilty pleas[,] and nowhere in that rule does it empower
      a trial court to dismiss criminal charges rather than reject the
      guilty plea. Accordingly, this [c]ourt believes Judge McDaniel
      should have simply rejected [Appellee’s] efforts to plead guilty if
      she believed there was an insufficient basis to establish the
      elements of the offenses charged in this case.

Id. at 5 (emphasis added).




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      We agree. If the fact of the prior conviction “needed to be restated,”

Commonwealth Brief at 15, Judge McDaniel should have asked the prosecutor

to supply all of the relevant facts concerning it, or alternatively, refused to

accept the plea and ordered the parties to go to trial. Absent an abuse of

discretion, we will not disturb a trial court’s decision sua sponte to withdraw a

guilty plea. Commonwealth v. Rosario, 679 A.2d 756, 760 (Pa. 1996). “An

abuse of discretion is not merely an error of judgment, but if in reaching a

conclusion the law is overridden or misapplied or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,

as shown by . . . the record, discretion is abused.”         Commonwealth v.

Herbert, 85 A.3d 558, 561 (Pa. Super. 2014). Moreover, Pa.R.Crim.P. 591

provides, in pertinent part, “At any time before the imposition of sentence,

the court may, in its discretion, permit, upon motion of the defendant, or

direct[] sua sponte, the withdrawal of a plea of guilty . . . and the

substitution of a plea of not guilty.”          Pa.R.Crim.P. 591(a) (emphasis

added). Our standard of review of Judge McDaniel’s disregard of the dictate

of Rule 591 requiring “substitution of a plea of not guilty” and thereby

committing an error of law, is de novo, and the scope of review is plenary.

Commonwealth v. Crawley, 924 A.2d 612 (Pa. 2007).

      Pennsylvania Rule of Criminal Procedure 320 provides: “At any time

before sentence, the court may, in its discretion, permit or direct a plea of




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guilty to be withdrawn and a plea of not guilty substituted.” Our Supreme

Court explained Rule 320 in Rosario, when it stated:

      [A]bsent an abuse of discretion, a trial judge can order         the
      withdrawal of a guilty plea any time prior to sentencing. The    use
      of the disjunctive “or” clearly identifies two situations when   the
      trial judge can withdraw a guilty plea: when requested by        the
      defendant or sua sponte without the defendant’s request.

Id. at 759 (emphasis added). As a result, it is clear that the trial court had

the authority, absent an abuse of discretion, to sua sponte reject the guilty

plea prior to imposing sentence.

      Abuse of discretion and error of law are clear in this case.           Judge

McDaniel, without prompting, informed Appellee that his prior drug conviction

made him ineligible to possess a firearm.     Appellee did not challenge this

statement. While the prosecutor did not repeat that fact in her summation,

as noted supra, no one disputed it.           Moreover, as argued by the

Commonwealth, the totality of the circumstances did not demand that the fact

be repeated. Commonwealth’s Brief at 15. This Court has stated:

      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. Thus,
      even though there is an omission or defect in the guilty plea
      colloquy, 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.




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Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)

(quoting Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993)

(emphasis added)).        If Judge McDaniel required restatement of Appellee’s

prior felony drug conviction, which she already had underscored and advised,

the judge should have asked the prosecutor to supply all relevant facts or

refused to accept the plea and ordered the parties, in accordance with our

criminal rules of procedure, to go to trial. Dismissing the VUFA charge, as

well as the other charges that had no required element involving a prior

conviction, was an abuse of discretion.2


____________________________________________


2  Contrary to Appellee’s claim, double jeopardy is not implicated herein. In a
single paragraph, Appellee suggests that when Judge McDaniel dismissed all
charges, “jeopardy should have attached.” Appellee’s Brief at 16. Appellee
cites Rosario, 679 A.2d at 757, for the proposition that “a plea of guilty
accepted by the court has the same effect as a verdict of guilty.” Appellee’s
Brief at 16 (emphasis added). In the case sub judice, Appellee ignores the
fact that the plea was not accepted.

       In actuality, Rosario supports the conclusion that double jeopardy is
not implicated in this case. The Rosario Court held, for purposes of the
statute barring re-prosecution for the same offense, when the former
prosecution resulted in a conviction based on a guilty plea “accepted by the
court,” jeopardy attaches after sentencing. Id. at 759. Appellee’s counsel
acknowledges that his plea was not accepted by Judge McDaniel but claims
“the matter was dismissed at the last possible point in time. [Appellee] came
into the guilty plea proceeding with every intention of pleading guilty, which
would constitute the same effect as a verdict of guilty” according to Rosario.
Appellee’s Brief at 16. Appellee admits, albeit without citation, that this Court
has held that being at a hearing at which the defendant intended to enter a
guilty plea does not subject the defendant to the risk of being
convicted. Id. He suggests, however, again without any support, that it did
so subject him because “the intention when arriving to a guilty plea proceeding
is for defendants to subject themselves to the risk of conviction.” Id. We
reject this claim as it lacks legal support and sensible logic.

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      Order   reversed;      case   remanded   for   reinstatement   of   charges.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2020




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