J-S36003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOHN EDWARD GALLO

                            Appellant                 No. 649 WDA 2014


             Appeal from the Judgment of Sentence March 25, 2014
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-CR-0002537-2012


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                               FILED JULY 17, 2015

        Appellant, John Edward Gallo, appeals from the judgment of sentence

entered in the Court of Common Pleas of Washington County after he pled

guilty to charges of kidnapping, aggravated assault, and terroristic threats.

On appeal Gallo argues that the trial court erred in refusing to let him

withdraw his guilty plea after sentencing.     As we find no error in the trial

court’s reasoning, we affirm.

        Gallo appeared before the trial court for the scheduled start of trial.

Instead, Gallo and the Commonwealth reached a negotiated plea agreement,

whereby Gallo would plead “no contest” to the charges against him and

receive guideline range sentences for each charge. After reviewing the plea
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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agreement, the trial court rejected it due to the fact that Gallo was not

accepting responsibility for the crimes.     When faced with the trial court’s

rejection of the plea agreement, Gallo relented and pled guilty to the

charges. The trial court immediately sentenced Gallo to an aggregate term

of imprisonment of 3 to 6 years, pursuant to the plea agreement.

      Gallo subsequently filed a motion to withdraw his guilty plea, which

the trial court denied. This timely appeal followed.

      While Gallo purports to raise only a single issue on appeal, it is in fact

a two-part argument.         Gallo first contends that the trial court erred in

refusing to allow him to withdraw his guilty plea after he was sentenced. In

the alternative, Gallo argues that the trial court erred in failing to hold an

evidentiary hearing on his post-sentence motion.

      There remains no absolute right to withdraw a guilty plea once

sentence has been imposed. The decision to allow a defendant to withdraw

their plea post-sentence is a matter that rests within the sound discretion of

the trial court. See Commonwealth v. Muhammad, 794 A.2d 378, 382

(Pa. Super. 2002). Furthermore, a request to withdraw a guilty plea made

after sentencing is subject to a higher scrutiny “since courts strive to

discourage   [the]   entry    of guilty pleas as sentence-testing devices.”

Commonwealth v. Flick, 802 A.2d 620, 623 (Pa. Super. 2002) (citation

omitted). Therefore, in order to withdraw a guilty plea after the imposition of

sentence, a defendant must make a showing of prejudice which resulted in a


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“manifest injustice.” Id. (citation omitted). A defendant meets this burden

only if he can demonstrate that his guilty plea was entered involuntarily,

unknowingly, or unintelligently. See Commonwealth v. Stork, 737 A.2d

789, 790 (Pa. Super. 1999). Whether a defendant entered into the plea

knowingly, voluntarily, and intelligently requires an analysis of the totality of

the circumstances, but, at a minimum, the court must make the following

inquiries:

      (1)    Does the defendant understand the nature of the charges
             to which he is pleading guilty?

      (2)    Is there a factual basis for the pleas?

      (3)    Does the defendant understand that he has the right to
             trial by jury?

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

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

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

Commonwealth v. Moser, 921 A.2d 526, 529 (Pa. Super. 2007).

      Moreover, once a defendant enters a guilty plea, it is presumed that

he was aware of what he was doing. See Stork, 737 A.2d at 790.

Consequently, defendants are bound by statements they make at their guilty

plea colloquy and may not successfully assert any claims that contradict

those statements. See Muhammad, 794 A.2d at 384. Therefore, when the

record establishes a guilty plea colloquy was conducted during which the


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defendant states he understands the nature of the charges against him, the

voluntariness of the plea is established and the burden of proving

involuntariness rests upon the defendant. See Stork, 737 A.2d at 790.

Additionally, since the law does not require that a defendant be pleased with

the outcome of his guilty plea, the defendant’s mere disappointment in the

sentence actually imposed does not represent a manifest injustice. See

Commonwealth v. Byrne, 833 A.2d 729, 737 (Pa. Super. 2003).

     A review of the certified record amply supports the trial court’s

conclusion that Gallo was not entitled to withdraw his guilty plea post-

sentencing. In his motion, Gallo alleged two grounds for relief. First, that

the victim had indirectly contacted him prior to the plea and applied “undue

pressure” on Gallo to plead guilty. Second, Gallo asserted that he did not

understand the elements of the charges and the facts supporting them.

     Both   of   these   allegations   are   directly   contradicted   by   Gallo’s

statements under oath during the guilty plea colloquy. In his written guilty

plea colloquy, Gallo was presented with questions asking whether he had

consulted with his attorney on the elements of the crimes charged and the

factual basis of each charge. Gallo answered “yes” to each. See Guilty Plea

Colloquy, filed 3/26/14, at 2. Furthermore, the written colloquy contained

questions assessing whether Gallo had been coerced into pleading guilty or if

any undisclosed promises had been made. In each instance, Gallo answered

“no.” See id., at 7-8.


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          During the oral guilty plea colloquy, Gallo testified that he had filled

out and signed the written guilty plea colloquy, and that after consulting with

his attorney, he was pleading guilty knowingly, willingly, and voluntarily.

See N.T., Guilty Plea Hearing, at 11-12. When the court asked if he had any

further questions after consulting with his attorney, Gallo answered, “No,

Your Honor.”       Id., at 13.   Gallo also reiterated that he had received no

undisclosed promises or threats in relation to his decision to plead guilty.

See id., at 14.

          As both grounds in Gallo’s post-sentence motion are contradicted by

his sworn statements before the trial court, neither ground could support a

finding of manifest injustice, regardless of any evidence Gallo could present

in support of these grounds. As a result, Gallo’s issues on appeal merit no

relief.

          Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2015




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