J-S23038-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    : IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                Appellee                         :
                                                 :
                      v.                         :
                                                 :
MICHAEL THOMPSON,                                :
                                                 :
                Appellant                        : No. 2077 EDA 2014

     Appeal from the Judgment of Sentence Entered October 21, 2013,
          in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0013617-2012

BEFORE:      DONOHUE, SHOGAN, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                              FILED MAY 4, 2015

     Michael Thompson (Appellant) appeals from the judgment of sentence

entered   following    his   convictions   for    simple   assault   and   recklessly

endangering another person (REAP).         Specifically, Appellant challenges the

denial of his post-sentence motion to withdraw his plea of nolo contendere.

We affirm.

     The trial court summarized the history of this case as follows.

     [Appellant] was charged with, inter alia, unlawful contact with
     minor - sexual offenses, dissemination of photo/film of child sex
     acts, and indecent assault w/o consent of other. These charges
     were lodged against [Appellant] as a result of an incident that
     occurred on August 7, 2012, during which [Appellant] gave a
     beer to his sixteen year-old cousin and then commented about
     her body, after which he then placed his fingers inside her
     panties, about one inch from her vagina, without her consent at
     his home after giving her a ride from school. While inside
     [Appellant’s] home, the victim observed photographs of young
     women who were possibly under the age of eighteen on
     [Appellant’s] computer. The victim reported the incident and


*Retired Senior Judge assigned to the Superior Court.
J-S23038-15


        what she observed to authorities who obtained a search warrant
        for [Appellant’s] computer.     The search of the computer
        uncovered several photographs of children under the age of
        eighteen depicted in a sexualized manner and engaging in sex
        acts.

              [Appellant] appeared before [the trial court] on October
        21, 2013, and immediately prior to the commencement of jury
        selection entered a negotiated plea of nolo contendere to the
        above listed charges.           In exchange for his plea the
        Commonwealth agreed to recommend that a sentence of seven
        and one-half to fifteen years’ incarceration be imposed on
        [Appellant]. The Commonwealth advised [Appellant] that it
        would not be seeking a Megan’s Law assessment as to whether
        he was a sexually violent predator because [Appellant] was
        subject to life time registration due to a prior conviction.

              After [Appellant] completed a colloquy form with the
        assistance of counsel and [the trial court] conducted a colloquy
        of [Appellant], [the trial court] accepted [Appellant’s] guilty plea
        and imposed the recommended sentence. On October 29, 2013,
        [Appellant] filed a motion to withdraw his guilty plea. Said
        motion was heard and denied on March 25, 2014. [Appellant]
        did not file an appeal after his motion was denied.

              On April 25, 2014, [Appellant] filed a petition under the
        Post-Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., seeking an
        order permitting him to file a notice of appeal nunc pro tunc.
        Said petition was granted on July 21, 2014, following which
        [Appellant] filed a timely notice of appeal and a Pa.R.A.P.
        1925(b) Statement of Matters.

Trial   Court   Opinion,   8/21/2014,    at   1-2   (citations   and   unnecessary

capitalization omitted).

        On appeal, Appellant presents one question for this Court’s review:

“Should the fairness and justice standard apply to a post-sentence motion to

withdraw a plea of nolo contendere where there is no danger for abuse or




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substantial prejudice to the Commonwealth?”            Appellant’s Brief at 4

(unnecessary capitalization omitted).

      Our standard of review is as follows.

      [A]fter the court has imposed a sentence, a defendant can
      withdraw his [nolo contendere] 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 [] pleas as sentencing-testing devices.
      …
             To be valid, a [nolo contendere] 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 [nolo contendere]; (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 [nolo contendere] 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) (citations

and quotation marks omitted; footnote added).1



1
  Although the Court in Prendes discussed withdrawal of a guilty plea, “in
terms of its effect upon a case, a plea of nolo contendere is treated the same
as a guilty plea.” Commonwealth v. Kepner, 34 A.3d 162, 166 n.6 (Pa.


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         Appellant argues that this Court should “revisit a long-standing

framework for deciding motions to withdraw guilty pleas.” Appellant’s Brief

at 10. Appellant acknowledges our aforementioned, well-settled standard of

review for an appeal from the denial of a post-sentence motion to withdraw

a guilty plea after sentencing, but contends that this Court should apply the

more liberal standard of review for a pre-sentence withdrawal of a guilty

plea2 when a negotiated sentence has been imposed. Specifically, Appellant

“asks this Court to hold that a post-sentence motion to withdraw a plea

should be liberally granted in cases where danger for abuse is absent.” Id.

at 11.




Super. 2011) (quoting Commonwealth v. Lewis, 791 A.2d 1227, 1230
(Pa. Super 2002)).
2

         In the seminal case of Commonwealth v. Forbes, 450 Pa. 185,
         299 A.2d 268 (1973), the Supreme Court set forth the standard
         for determining when a motion to withdraw a guilty plea prior to
         sentencing should be granted. The Court stated that “[a]lthough
         there is no absolute right to withdraw a guilty plea, properly
         received by the trial court, it is clear that a request made before
         sentencing ... should be liberally allowed.” 450 Pa. at 190, 299
         A.2d at 271. The Court then outlined the now well-established
         two prong test for determining when to grant a pre-sentence
         motion to withdraw a plea: (1) the defendant has provided a
         “fair and just reason” for withdrawal of his plea; and (2) the
         Commonwealth will not be “substantially prejudiced in bringing
         the case to trial.” Id.

Commonwealth v. Muhammad, 794 A.2d 378, 382-83 (Pa. Super. 2002).



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J-S23038-15


      “It is beyond the power of a Superior Court panel to overrule a prior

decision of the Superior Court.” Commonwealth v. Pepe, 897 A.2d 463,

465 (Pa. Super. 2006). Moreover, “[w]here the Supreme Court has spoken

on a particular subject, it is our obligation as an intermediate appellate court

to follow the dictates of our Supreme Court, absent a legally relevant

distinction.” Estate of Hicks v. Dana Companies, LLC, 984 A.2d 943, 968

(Pa. Super. 2009).

      Thus, we hold the trial court did not err or abuse its discretion in

denying Appellant’s post-sentence motion to withdraw his plea of nolo

contendere.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/4/2015




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