J-S16026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    NICHOLAS MICHAEL TATE                      :
                                               :   No. 1299 MDA 2017
                       Appellant               :

             Appeal from the Judgment of Sentence May 16, 2016
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0000423-2016,
                           CP-22-CR-0006613-2015

BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                                 FILED APRIL 24, 2018

       Nicholas Michael Tate (Appellant) appeals from the judgment of

sentence imposed by the trial court after he pled guilty at docket CP-22-CR-

0006613-2015 to the charges of possession with the intent to deliver a

controlled substance (PWID) and possession of drug paraphernalia,1 and at

docket CP-22-CR-0000423-2016 to the charges of receiving stolen property,

persons not to possess a firearm, flight to avoid apprehension, tampering with

or fabricating physical evidence, PWID, possession of a small amount of



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* Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30), (32).
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marijuana, and possession of drug paraphernalia.2 We affirm.

       We summarize the material facts leading to the charges at docket CP-

22-CR-0006613-2015 as follows. On August 22, 2015, Appellant was involved

in an automobile accident while driving along South Oak Grove Road in West

Hanover Township, Dauphin County. Witnesses at the scene of the accident

indicated that they observed Appellant throw a small plastic baggie into a line

of trees. The witnesses directed the police to the baggie, which contained 121

grams of marijuana.         Appellant was severely injured in the accident and

consequently, transported to Hershey Medical Center (Hospital). Hospital staff

later contacted the police to inform them that they had recovered an additional

122 grams of marijuana from four plastic baggies found in Appellant’s

backpack.

       The pertinent facts leading to the charges at docket CP-22-CR-0000423-

2016 are as follows.        On January 1, 2016, Appellant’s great aunt, Karen

Symonds (Symonds), reported to the Derry Township Police that she believed

Appellant was selling drugs out of her house in Dauphin County. On January

2, 2016, Symonds brought marijuana to the police that she claimed belonged

to Appellant. The police obtained a search warrant for Symonds’ home based

on this information.      On January 3, 2016, the police executed the search

warrant at which time Appellant attempted to flee the home. The police were


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2 18 Pa.C.S.A. §§ 3925(a), 6105(a)(1), 5126(a), 4910(1); 35 P.S. § 780-
113(a)(30), (31), (32).

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ultimately able to detain Appellant.     Upon searching the premises, police

recovered several guns, ammunition (including hollow point rounds),

marijuana, packaging material, four cellphones, a bulletproof vest, and 11

letters regarding drug sales and other illegal activity.

      On May 16, 2016, Appellant entered a negotiated guilty plea to all

charges on both of the aforementioned dockets. The same day, the trial court

sentenced Appellant to three to six years of incarceration. Appellant did not

file any post-sentence motions or a direct appeal at that time.

      On March 24, 2017, Appellant filed a petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, seeking the

reinstatement of his direct appeal rights nunc pro tunc.      The trial court

summarized the remainder of the procedural history as follows:

         The [c]ourt appointed Jennifer Tobias, Esq., as PCRA counsel.
      On May 2, 2017, Attorney Tobias filed a counseled PCRA Petition,
      to which the Commonwealth filed an Answer on May 23, 2017.

         On June 2, 2017, the [c]ourt conducted an evidentiary hearing.
      On July 19, 2017, the [c]ourt ordered reinstatement of
      [Appellant]’s post-sentence and [direct appeal] rights.      The
      [c]ourt directed that [Appellant] shall file any post-sentence
      motion within ten days thereof, or an appeal to the Pennsylvania
      Superior Court within 30 days thereof.

         On July 26, 2017, [Appellant] filed a Motion to Withdraw Guilty
      Plea to which the Commonwealth filed a Response on July 31,
      2017. On August 10, 2017, the [c]ourt denied [Appellant]’s
      Motion to Withdraw Guilty Plea.

         [Appellant] filed a Notice of Appeal on August 17, 2017 and a
      timely Concise Statement of Matters Complained of on Appeal on
      September 13, 3017.


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Trial Court Opinion, 10/31/17, at 4.

      On appeal, Appellant presents the following issues for review:

      1.    Whether [] Appellant’s guilty plea was unlawfully induced by
      the ineffectiveness of counsel?

            a.    Whether [] Appellant’s guilty plea was not knowing,
            voluntary, and intelligently entered, as he was under the
            influence of psychotropic drugs at the time of the plea?

            b. Whether [] Appellant’s guilty plea was coerced, as []
            Appellant felt pressured into pleading guilty?

Appellant’s Brief at 5.

      As a preliminary matter, we note that Appellant attempts to frame the

entirety of his argument relating to the voluntariness of his guilty plea as an

ineffective assistance of counsel claim.     Our Supreme Court has held that

“[g]enerally, claims of ineffectiveness of counsel are not ripe until collateral

review.” Commonwealth v. Knox, 165 A.3d 925, 928 (Pa. Super. 2017),

appeal denied, 173 A.3d 257 (Pa. 2017). Ineffective assistance of counsel

claims are permitted on direct review, at the discretion of the trial court, only

where there exists:       (1) extraordinary circumstances, or (2) good cause

accompanied     by   a    knowing   and    express   waiver   of   PCRA   rights.

Commonwealth v. Holmes, 79 A.3d 562, 577-80 (Pa. 2013). Exceptional

circumstances exist where “a claim (or claims) of ineffectiveness is both

meritorious and apparent from the record so that immediate consideration

and relief is warranted.” Id. at 577. Here, Appellant makes no argument that

extraordinary circumstances exist nor has he waived PCRA review. Therefore,


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insofar as Appellant challenges his plea counsel’s effectiveness, such claims

must await collateral review.3

       To the extent Appellant challenges the voluntariness of his guilty plea,

we conclude that the trial court did not err in denying his motion to withdraw

his plea. Appellant argues that the trial court should have permitted him to

withdraw his guilty plea because it was not knowing, voluntary, or intelligent,

as Appellant was under the influence of psychotropic medication at the time

of his plea. Appellant further asserts that the plea was involuntary because

his counsel coerced him into pleading guilty by telling him that if he did not

accept the plea agreement, he would be prosecuted by the “feds,” and as a

result, counsel’s fees would triple and Appellant would spend more time in

prison. Appellant’s Brief at 16.

       Our Court has held that “[t]here is no absolute right 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 trial court’s decision regarding

whether to permit a guilty plea to be withdrawn should not be upset absent

an abuse of discretion.” Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa.

Super. 2011). “[P]ost-sentence motions for withdrawal are subject to higher



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3  Although we could affirm Appellant’s judgment of sentence on this basis
alone, for purposes of judicial economy, we address the merits of his challenge
to the trial court’s denial of his motion to withdraw his guilty plea.

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scrutiny [because] courts strive to discourage entry of guilty pleas as

sentence-testing devices.” Commonwealth v. Broaden, 980 A.2d 124, 129

(Pa. Super. 2009) (quotations and citation omitted).          Importantly, “a

defendant who attempts to withdraw a guilty plea after sentencing must

demonstrate prejudice on the order of manifest injustice before withdrawal is

justified.” Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013),

appeal denied, 87 A.3d 319 (Pa. 2014). Our Court has held that “[a] plea

rises to the level of manifest injustice when it is entered into involuntarily,

unknowingly,   or   unintelligently.”     Id.   (quoting   Commonwealth      v.

Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002)).

      Prior to accepting a guilty plea, a trial court must determine on the

record whether it is voluntarily, knowingly, and intelligently tendered. See

Pa.R.Crim.P. 590(a)(3).     In order to ensure a voluntary, knowing, and

intelligent plea, our Supreme Court requires that a trial court, at a minimum,

ask the following questions during a plea colloquy:

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

      2)    Is there a factual basis for the plea?

      3)    Does the defendant understand that he has the right to a
            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?


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      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?

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

      Additionally, “[o]ur law presumes that a defendant who enters a guilty

plea was aware of what he was doing,” and “[h]e bears the burden of proving

otherwise.” Pollard, 832 A.2d at 523 (citation omitted). In assessing the

adequacy of a guilty plea colloquy and the voluntariness of the subsequent

plea, “the court must examine the totality of circumstances surrounding the

plea.” Broaden, 980 A.2d at 129.

      Instantly, the record supports the trial court’s determination that

Appellant entered a knowing, voluntary, and intelligent guilty plea and that he

failed to demonstrate a manifest injustice warranting the withdrawal of his

plea. At the outset, we note that the certified record reflects that Appellant

received a full and proper guilty plea colloquy. During the colloquy, Appellant

confirmed that he understood the nature of the charges to which he was

pleading guilty, the factual basis for the plea, and that Appellant was aware

of the permissible ranges of sentences for the offenses charged.          N.T.,

5/16/16, at 2-5, 7-11. Appellant also indicated that he was aware that, by

pleading guilty, he was giving up his right to be presumed innocent and his

right to a trial by jury:

      [Commonwealth]:        By pleading guilty you give up certain
      constitutional rights such as your right to be presumed innocent,
      the right to have a trial, the right to see any evidence the
      Commonwealth would present, the right to present any evidence

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      on your own behalf, the right to testify, the right not to testify,
      the right to file any pretrial motions. Those are all the rights you
      give up by pleading guilty today. Do you understand that[?]

      [Appellant]: Yes, sir.

Id. at 5. Additionally, the trial court indicated that it would sentence him

according to the negotiated plea agreement. Id. at 15-17.

      With respect to his claim that psychotropic medications precluded him

from rendering a knowing, voluntary and intelligent plea, no evidence of

record supports this claim. At the guilty plea hearing, the prosecutor noted

for the trial court that Appellant had a history of mental health problems, but

also noted that since Appellant had been incarcerated and regularly taking his

medications, his demeanor and social interactions had substantially improved.

N.T., 5/16/16, at 14-15. At no point during this discussion did Appellant claim

that these medications impacted his ability to make a knowing, voluntary, and

intelligent plea. In fact, he thanked the prosecutor for his remarks. See id.

If anything, the prosecutor’s comments demonstrate that the medications

aided Appellant in making a knowing, voluntary, and intelligent plea.

      There is also no evidence of record supporting Appellant’s claim that his

counsel coerced him into pleading guilty. At his guilty plea hearing, Appellant

specifically indicated that he was satisfied with the representation of his

counsel. Id. at 3-4. Moreover, when asked if “anyone threatened, coerced

you, or made any promises to you other than the plea agreement we reached

to get you to enter into this plea today[,]” Appellant responded in the


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negative. Id. at 5-6. When asked if he was “entering into this plea of your

own freewill,” Appellant responded “Yes, sir.”    Id. at 6.   Appellant never

indicated during the hearing that counsel coerced him into pleading guilty, and

he has not subsequently provided any evidence of coercion. “A defendant is

bound by the statements made during the plea colloquy, and a defendant may

not later offer reasons for withdrawing the plea that contradict statements

made when he pled.” Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa.

Super. 2012). Accordingly, 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.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/24/18




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