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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
MICHAEL HAMILTON,                          :          No. 1246 EDA 2018
                                           :
                          Appellant        :


             Appeal from the Judgment of Sentence, June 24, 2009,
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos. CP-51-CR-0008274-2007,
                            CP-51-CR-0009838-2007


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MARCH 15, 2019

        Michael Hamilton appeals from the June 24, 2009 judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after he entered

an open guilty plea to one count each of robbery and possession of an

instrument of crime1 (“PIC”) at Case No CP-51CR-008274-2007 and one count

of robbery at Case No. CP-51-CR-0009838-2007 in connection with his

commission of multiple armed robberies.            The trial court imposed an

aggregate sentence of 8 to 18 years of imprisonment. We affirm.

        The trial court set forth the following procedural history.

              On July 1, 2009, [appellant] filed a pro se
              post-sentence motion, claiming that he pled guilty
              under duress and asked the sentencing court to
              reconsider the sentence imposed This motion was

1   18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 907(b), respectively.
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              denied on August 20, 2009. [Appellant] did not file a
              direct appeal. On February 24, 2010, [appellant] filed
              a pro se PCRA[2] petition, alleging ineffective
              assistance of counsel for failure to file post-sentence
              motions and a direct appeal. Emily Cherniak, Esquire
              was appointed as PCRA counsel on April 1, 2011. On
              June 28, 2012, PCRA counsel filed an Amended PCRA
              petition and requested an evidentiary hearing as to
              whether [appellant] should have his post-sentence
              motion and appellate rights reinstated nunc pro
              tunc. On August 3, 2017, the Commonwealth filed a
              Motion to Dismiss, stating that it would agree to an
              evidentiary hearing regarding the reinstatement of
              [appellant’s] appellate rights but would not agree to
              reinstatement of [appellant’s] post-sentence motion
              rights as [appellant] had failed to show prejudice. On
              December 6, 2017, the Honorable Roger F. Gordon
              sent [appellant] a Notice pursuant to [Pa.R.Crim.P.]
              907, indicating that his petition would be dismissed
              as without merit. On January 12, 2018, the matter
              was reassigned to this Court for further proceedings.

              On March 28, 2018, both parties appeared before this
              Court and stated that they had reached an agreement
              to reinstate [appellant’s] appellate rights, but not his
              post-sentence motion rights nunc pro tunc. PCRA
              counsel agreed to remain on appeal. On April 24,
              2018, [appellant] filed a Notice of Appeal.          On
              April 25, 2018, he filed an Amended Notice of Appeal.
              On July 11, 2018, upon receipt of all notes of
              testimony, this Court ordered that [appellant] file a
              Concise Statement of Errors Complained of on Appeal
              [p]ursuant to Pa.R.A.P. 1925(b) and defense counsel
              did so on July 31, 2018.

Trial court opinion, 8/11/18 at 2-3.

        Appellant raises the following issue for our review: “Whether the

appellant’s guilty plea was not knowingly and voluntarily entered because




2   Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.


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defense counsel misrepresented the nature of the guilty plea to the appellant

and the appellant wanted to assert his innocence and have a trial?”

(Appellant’s brief at 5; full capitalization omitted).

      In reviewing this appeal, we are mindful that:

            after the court has imposed a sentence, a defendant
            can withdraw his guilty plea only where necessary to
            correct a manifest injustice. [P]ost-sentence motions
            for withdrawal are subject to higher scrutiny since
            courts strive to discourage the entry of guilty pleas as
            sentencing-testing devices. . . .

            To be valid, a guilty plea must be knowingly,
            voluntarily and intelligently entered. [A] manifest
            injustice occurs when a plea is not tendered
            knowingly,      intelligently,      voluntarily,      and
            understandingly. The Pennsylvania Rules of Criminal
            Procedure mandate pleas be taken in open court and
            require the court to conduct an on-the-record colloquy
            to ascertain whether a defendant is aware of his rights
            and the consequences of his plea. Under Rule 590,
            the court should confirm, inter alia, that a defendant
            understands: (1) the nature of the charges to which
            he is pleading guilty; (2) the factual basis for the plea;
            (3) he is giving up his right to trial by jury; (4) and
            the presumption of innocence; (5) he is aware of the
            permissible ranges of sentences and fines possible;
            and (6) the court is not bound by the terms of the
            agreement unless the court accepts the plea. The
            reviewing Court will evaluate the adequacy of the plea
            colloquy and the voluntariness of the resulting plea by
            examining the totality of the circumstances
            surrounding the entry of that 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. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014) (internal

citations and quotations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).



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      Additionally, “a defendant is bound by the statements which he makes

during his plea colloquy.” Commonwealth v. Barnes, 687 A.2d 1163, 1167

(Pa. 1997) (citations omitted). As such, a defendant “may not assert grounds

for withdrawing the plea that contradict statements made when he pled

guilty,” and he cannot recant the representations he made in court when he

entered his guilty plea. Id. (citation omitted). Moreover, the law does not

require that a defendant be pleased with the outcome of his decision to plead

guilty. The law only requires that a defendant’s decision to plead guilty be

made knowingly, voluntarily, and intelligently.      See Commonwealth v.

Moser, 921 A.2d 526, 528-529 (Pa.Super. 2007).

      Here, appellant contends that “defense counsel misrepresented the

nature of his guilty plea, claiming that defense counsel[] told him he had

negotiated a 5 to 10 year sentence and had one of [appellant’s] friends meet

with [appellant] to talk him into it.” (Appellant’s brief at 11-12.)

      Contrary to appellant’s contention, the record demonstrates that

appellant tendered his pleas knowingly, intelligently, voluntarily, and

understandingly. Appellant read, completed, and signed a four-page written

guilty plea colloquy for the crimes to which he pled guilty in both cases, which

are part of the certified record. (Written guilty plea colloquies, 6/24/09.) On

those two separate colloquies, appellant affirmed, in writing, among other

things, (i) that he committed the crimes to which he pled guilty; (ii) that his

lawyer explained to him the elements of the offenses to which he pled guilty



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and that the Commonwealth must prove those elements beyond a reasonable

doubt in order to obtain a conviction; (iii) that appellant knew that he could

go to jail for up to 22½ to 45 years for the crimes he committed; (iv) that

appellant did not need to enter a guilty plea, but was able to plead not guilty

and go to trial; (v) that appellant had sufficient time to discuss his cases with

his lawyer and was satisfied with his lawyer’s advice and services; (vi) that

although he was assisted by counsel, the final decision to plead guilty was his

and his alone; and (vii) that he read the colloquies, or they were read to him,

and that he understood the colloquies. (Id.)

      The record further reflects that at the beginning of the oral guilty plea

colloquy, the trial court took a great deal of time not only to explain to

appellant his options – jury trial, bench trial, or entry of a negotiated or open

plea – but to describe those options, as well as their potential ramifications,

in detail. (Notes of testimony, 6/24/09 at 6-14.) After the trial court did so,

appellant expressed his desire to attempt to negotiate a plea, and the trial

court recessed the proceedings so the parties could speak privately as they

saw fit. (Id. at 14-15.)

      When the proceedings reconvened, the record reflects that appellant

agreed to enter an open guilty plea to two counts of robbery and one count of

PIC in exchange for the Commonwealth’s nolle prossing the remaining




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charges.3 (Id. at 15-17, 19.) During that colloquy, appellant affirmed that

he understood the written guilty plea colloquies; that he went over them with

his attorney; that he was satisfied with his attorney’s representation; and that

the signatures on the forms were his own. (Id. at 19-21.) Appellant further

affirmed that no one in any way forced or coerced him to enter a guilty plea

on either case. (Id. at 21.) Appellant denied being under the influence or

suffering from any mental illness and acknowledged his understanding of the

maximum sentences he faced. (Id. at 21-23.) After the Commonwealth read

the facts underlying the charges, appellant admitted to the factual basis of the

charges and entered his open pleas. (Id. at 27-30.)

      After thoroughly reviewing the record, we conclude that the totality of

the   circumstances    surrounding   appellant’s   entry   of   his   guilty   pleas

demonstrates that appellant fully understood the nature and consequences of

his pleas and that he entered the pleas knowingly, intelligently, voluntarily,

and understandingly.

      Judgment of sentence affirmed.




3  The remaining charges included criminal conspiracy, in violation of
18 Pa.C.S.A. § 903(a)(1), graded as a first-degree felony; aggravated assault
in violation of 18 Pa.C.S.A. § 2702(a), graded as a first-degree felony;
firearms not to be carried without a license, in violation of 18 Pa.C.S.A.
§ 6105(a)(1), graded as a third-degree felony; together with six misdemeanor
charges. (Criminal information, CP-51-CR-0009383-2007, 9/4/07.)


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 3/15/19




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