J-S05001-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT
                                          :        OF PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANTHONY FARACE                           :
                                          :
                    Appellant             :   No. 1699 WDA 2016

            Appeal from the Judgment of Sentence May 23, 2016
            In the Court of Common Pleas of Washington County
            Criminal Division at No(s): CP-63-CR-0002632-2014


BEFORE:    OLSON, OTT and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 28, 2018

      Appellant, Anthony Farace, appeals from the judgment of sentence

entered on May 23, 2016, as made final by the denial of his post-sentence

motion on October 17, 2016. We affirm.

      The factual background of this case is as follows. In September 2014,

police questioned Appellant in relation to the burglary of an abandoned trailer

home. He was found in possession of several items stolen in the burglary and

six oxycodone pills. Appellant admitted that he had 29 additional oxycodone

pills at his residence and that he sold the pills for money.

      The procedural history of this case is as follows. On December 23, 2014,

the Commonwealth charged Appellant via criminal information with eight




* Retired Senior Judge assigned to the Superior Court
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offenses. On January 20, 2016, Appellant pled guilty to possession with intent

to deliver a controlled substance1 and receiving stolen property.2

        This Court previously described Appellant’s written and oral guilty plea

colloquies as follows:

        Question 39 of Appellant’s written plea colloquy stated: Your plea
        must be voluntary and your rights must be voluntarily, knowingly,
        and intelligently waived. If anyone has promised you anything
        other than the terms of a plea bargain, your plea will be rejected.
        If anyone has forced you or attempted to force you in any way to
        plead guilty or nolo contendere, your pleas will be rejected. Do
        you fully understand this? Appellant answered no.

        Question 40 stated: Has anybody forced you to enter this plea?
        Appellant answered yes. Question 41 asked: Are you doing this
        of your own free will? Appellant answered yes. To Question 50
        of the written colloquy, which asked if he was presently taking any
        medication which might affect your thinking or your free will,
        Appellant answered no. Question 51 asked: Have you had any
        narcotics or alcohol in the last 48 hours? Appellant answered yes.

        The trial court conducted the following oral colloquy of Appellant:

        The trial court: Sir, you’re entering into a plea. Are you doing this
        voluntarily?

        Appellant: I really didn’t do nothing. I mean, I was coerced into
        it, I was coerced into something and I’m getting the blame for it,
        which I didn’t do nothing, but—I don’t understand, you know, I
        really—

        The trial court: Well, what I mean, sir, is did anyone tell you that
        you have to enter this plea today?

        Appellant: It seems like I’m being forced into it for some reason,
        but I’m not sure. You know, I'm—to be honest with you, I—


1   35 P.S. § 780-113(a)(30).

2   18 Pa.C.S.A. § 3925(a).


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      The trial court: Well, if you think you are being forced into this, I
      cannot accept your open plea.

      Appellant: Right. Right.

      The trial court: This is something you have to do voluntarily.

      Appellant: Right.

      [After a recess was taken so Appellant could consult with his
      counsel the colloquy continued as follows:]

      The trial court: After counsel provides that advice to you, did you
      make your own independent decision to enter this open plea?

      Appellant: Yes.

      When asked if he was doing so out of his own freewill, Appellant
      again answered affirmatively. Appellant also acknowledged that
      he had completed the written colloquy prior to his hearing.

Commonwealth v. Farace, 2017 WL 4786413, *1–2 (Pa. Super. Oct. 24,

2017) (unpublished memorandum) (cleaned up).

      On May 23, 2016, the trial court sentenced Appellant to an aggregate

term of 16 to 32 months’ imprisonment. On June 2, 2016, Appellant filed a

post-sentence motion seeking to withdraw his guilty plea. On October 17,

2016, the trial court denied that motion. This timely appeal followed.

      Appellant’s court-appointed counsel filed a motion to withdraw as

counsel together with a brief pursuant to Anders v. California, 386 U.S. 738

(1967) and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). See

Farce, 2017 WL 4786413 at *1.          This Court denied counsel’s motion to

withdraw and ordered him to file a revised Anders brief or a merits brief. See

id. at *5. Counsel thereafter filed a merits brief. After this case was submitted


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to a new panel pursuant to Superior Court Operating Procedure 65.5(F), it is

now ripe for disposition.

      Appellant presents one issue for our review:

      Did the trial court abuse its discretion by summarily denying
      [Appellant’s] motion to withdraw his pleas as not entered
      voluntarily, knowingly, and intelligently?

Appellant’s Brief at 4 (capitalization removed).

      In his lone issue, Appellant argues that the trial court erred in denying

his post-sentence motion seeking to withdraw his guilty plea. We review a

trial court’s decision to deny a post-sentence motion to withdraw a guilty plea

for an abuse of discretion.    Commonwealth v. Unangst, 71 A.3d 1017,

1019 (Pa. Super. 2013) (citation omitted). In order to withdraw a guilty plea

after sentencing, a defendant must show that failing to permit withdrawal

would result in manifest injustice. Commonwealth v. Hart, 174 A.3d 660,

664 (Pa. Super. 2017) (citation omitted).

      Appellant argues that the trial court’s failure to permit withdrawal of his

guilty plea resulted in a manifest injustice because the plea was not knowing,

intelligent, and voluntary.   Relying on the portions of the written and oral

colloquies quoted above, Appellant argues that the record reflects that he was

coerced into pleading guilty. We disagree.

      Prior to the guilty plea hearing, Appellant filled out the written guilty

plea colloquy.   Taken alone, the written guilty plea colloquy raises serious

concerns regarding the voluntariness of Appellant’s plea. During the guilty



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plea hearing, however, the trial court explained to Appellant the consequences

of entering a guilty plea and extensively questioned Appellant regarding the

voluntary nature of the guilty plea. See N.T., 1/20/16, at 4-16. Contrary to

Appellant’s assertion, this oral colloquy included the trial court explaining the

maximum penalties for the offenses to which he was pleading guilty. Id. at

9-12.     After consulting with his counsel, Appellant indicated that he

understood the consequences of pleading guilty.        He then stated, multiple

times, that he was entering the guilty plea of his own free will and volition.

Id. at 14-15.    The trial court observed Appellant during this colloquy and

determined that he was entering into a knowing, intelligent, and voluntary

plea.    This finding is supported by the record, i.e., Appellant’s repeated

affirmation that he was entering a voluntary, knowing, and intelligent guilty

plea after his prior equivocations.

        These facts distinguish this case from Commonwealth v. Gunter, 771

A.2d 767 (Pa. 2001), the sole case relied on by Appellant. In Gunter, the

defendant’s written guilty plea colloquy raised concerns regarding the

voluntariness of his guilty plea. In Gunter, unlike in the case at bar, the trial

court did not conduct an oral colloquy in order to clarify these concerns. Id.

at 768. It was the failure to clarify Appellant’s inconsistent answers on the

written guilty plea colloquy, along with the failure of the written guilty plea to

explain the effect of pleading guilty, that led our Supreme Court to find that




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the defendant’s guilty plea was not knowing, intelligent, and voluntary.3 See

id. at 772.

      The trial court’s determination is further supported by the circumstances

of Appellant’s guilty plea and sentencing hearing. In many cases, a trial court

imposes sentence immediately after a defendant pleads guilty.        See, e.g.

Gunter, 771 A.2d at 768. In this case, however, the trial court sentenced

Appellant over four months after he pled guilty. Appellant did not seek to

withdraw his guilty plea during those four months nor did he seek to withdraw

his guilty plea at the sentencing hearing. Instead, Appellant only sought to

withdraw his guilty plea after the trial court sentenced him to a term of

imprisonment.      This indicates that Appellant was merely unhappy with the

sentence received and is attempting to challenge the validity of his guilty plea

to attack the judgment of sentence.     Therefore, we conclude that the trial

court did not abuse its discretion in denying Appellant’s motion to withdraw

his guilty plea.

      Judgment of sentence affirmed.




3 Our Supreme Court also noted the dubious representation that the defendant
in Gunter received. We need not address that issue in this case because the
oral colloquy indicates that Appellant’s plea was knowing, intelligent, and
voluntary.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2018




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