J-S46035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                 Appellee                 :
                                          :
           v.                             :
                                          :
ROBERT MERRITT,                           :
                                          :
                 Appellant                :           No. 902 EDA 2015

   Appeal from the Judgment of Sentence entered on November 3, 2014
          in the Court of Common Pleas of Northampton County,
              Criminal Division, No. CP-48-CR-0001888-2014

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 31, 2015

     Robert Merritt (“Merritt”) appeals from the judgment of sentence

imposed following his guilty plea to possession with intent to deliver a

controlled substance (“PWID”). See 35 P.S. § 780-113(a)(30). We affirm.

     On May 1, 2014, Merritt was arrested and charged with PWID and

criminal use of a communication facility deriving from allegations that he had

sold cocaine to a confidential informant. During the coming months, Merritt,

either pro se or through counsel, filed numerous Motions between May and

October 2014. Following a hearing, the trial court denied the Motions. On

November 3, 2014, Merritt entered a guilty plea on the charge of PWID. In

exchange for the guilty plea, the charge of criminal use of a communication

facility was withdrawn. Merritt waived a presentence investigation and was

immediately sentenced to 14 to 28 months in prison.
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        Merritt, pro se, filed a “Motion to set the Verdict Aside – To Stay Until

the Decision is Final from Appeal and to Appeal as of Right,” including a

handwritten form Petition under the Post-Conviction Relief Act (“PCRA”).1

The trial court treated the Motion, which was dated November 6, 2014,2 as a

timely post-sentence Motion under Pa.R.Crim.P. 720. On January 13, 2015,

Merritt’s appointed counsel prepared a document entitled “Amended PCRA

Petition,” restating the issues raised in Merritt’s pro se filing.   Based upon

the procedural posture of the matter and the fact that the trial court had not

decided the Post-Sentence Motion,3 the trial court treated the “Amended

PCRA Petition” as part of the timely filed post-sentence Motion.       See Trial

Court Opinion, 2/19/15, at 3-4. Following a hearing, the trial court denied

the post-sentence Motion. Merritt filed a timely, counseled Notice of Appeal.

        On appeal, Merritt raises the following question for our review:

“Whether the [trial] court erred by finding [Merritt’s] plea was knowing[ly,]

voluntar[ily,] and intelligently made[,] where [Merritt] indicated he was

coerced?” Brief for Appellant at 6.

        It is well settled that “to be valid, a guilty plea must be knowingly,

voluntarily, and intelligently entered.” Commonwealth v. Bedell, 954 A.2d

1209, 1212 (Pa. Super. 2008) (citation omitted). “There is no absolute right


1
    42 Pa.C.S.A. §§ 9541-9546.
2
    The Motion was docketed on November 25, 2014.
3
    See Pa.R.Crim.P. 720(B)(3)(a).


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to withdraw a guilty plea, and the decision as to whether to allow a

defendant to do so is a matter within the sound discretion of the trial court.”

Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003).               “A

defendant who attempts to withdraw a guilty plea after sentencing must

demonstrate prejudice on the order of manifest injustice before withdrawal

is justified. A showing of manifest injustice may be established if the plea

was   entered     into   involuntarily,   unknowingly,   or   unintelligently.”

Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011)

(citation and quotation marks omitted). Additionally, “[a] defendant’s

disappointment in the sentence imposed does not constitute manifest

injustice.” Pollard, 832 A.2d at 522 (quotation marks omitted).

            In order to ensure a voluntary, knowing, and intelligent
      plea, trial courts are required to ask the following questions in
      the guilty plea colloquy:

      1) Does the defendant understand the nature of the charges to
         which he or she is pleading guilty or nolo contendere?

      2) Is there a factual basis for the plea?

      3) Does the defendant understand that he or she has the right to
         a trial by jury?

      4) Does the defendant understand that he or she is presumed
         innocent until found guilty?

      5) Is the defendant aware of the permissible ranges of sentences
         and/or fines for the offenses charged?

      6) Is the defendant aware that the judge is not bound by the
         terms of any plea agreement tendered unless the judge
         accepts such agreement?



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Bedell, 954 A.2d at 1212; see also Pa.R.Crim.P. 590, cmt (setting forth the

areas for inquiry during the guilty plea colloquy). “[N]othing in the rule

precludes the supplementation of the oral colloquy by a written colloquy that

is read, completed, and signed by the defendant and made a part of the plea

proceedings.”   Bedell, 954 A.2d at 1212-13 (citation omitted).       Further,

“the totality of the circumstances surrounding the plea” must be examined.

Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en

banc).

      Merritt asserts that because he indicated on the written plea

agreement that additional promises were made to him outside of the plea

agreement, and he made a notation next to his signature on the final page

of the written plea agreement, his plea was not voluntary, knowing, or

intelligent. Brief for Appellant at 11-12. Merritt asserts that during the plea

colloquy, he felt rushed and that he did not want to give up his rights. Id.

at 12.   However, during the colloquy, Merritt acknowledged that he was

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

pleading guilty. N.T., 11/3/14, at 3, 5.

      In his written guilty plea colloquy, Merritt stated affirmatively that he

understood the nature of charges to which he was pleading guilty; he

committed the crime to which he was pleading guilty; he understood that he

had an absolute right to trial by jury; he understood he is presumed

innocent until proven guilty; he was informed of the maximum range of



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sentences and/or fines that could be imposed; and that the trial court is not

bound by the terms of the plea agreement until the court accepts such plea

agreement. Written Guilty Plea Colloquy, 11/3/14, at 5-8. During the oral

colloquy, Merritt confirmed the statements he made in the written guilty plea

colloquy. N.T., 11/3/14, at 2-5, 7.

      Considering the totality of the circumstances, the record reflects that

Merritt voluntarily, knowingly, and intelligently tendered his guilty plea. See

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)

(stating that “[a] defendant is bound by the statements he makes during his

plea colloquy, and may not assert grounds for withdrawing the plea that

contradict statements made when he pled.”). While Merritt asserted in his

post-sentence Motion that he was coerced into entering his plea, N.T.,

2/6/15, at 7, Merritt’s own statements during the colloquies indicate that

Merritt tendered his guilty plea under his own volition. Indeed, Merritt’s plea

counsel testified that Merritt had called him from prison and stated that he

wished to enter a guilty plea. Id. at 37. Additionally, Merritt’s plea counsel

stated that he was ready for trial if Merritt had decided not to enter into the

plea agreement. Id. at 35. Further, nothing in the record supports Merritt’s

claim that additional promises were made to Merritt. Therefore, the record

does not support Merritt’s contention that manifest injustice will occur if his

guilty plea is allowed to stand.




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      Finally, to the extent Merritt claims ineffective assistance of counsel,

we conclude that Merritt should raise such claims in a timely PCRA petition.

See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (stating that

“a petitioner should wait to raise claims of ineffective assistance of trial

counsel until collateral review.”).   Therefore, this Court will not address

Merritt’s ineffectiveness of counsel claims.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2015




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