J-S16007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HAYLEY NICHOLE BUTLER

                            Appellant                  No. 367 WDA 2016


            Appeal from the Judgment of Sentence December 21, 2015
                In the Court of Common Pleas of Cambria County
               Criminal Division at No(s): CP-11-CR-0002382-2014


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                           FILED AUGUST 11, 2017

       Hayley Nichole Butler appeals from the December 21, 2015 judgment

of sentence1 entered in the Cambria County Court of Common Pleas

following her nolo contendere plea to third-degree murder.2 We affirm.

       On October 5, 2015, Butler entered a plea of nolo contendere to one

count of third-degree murder for the death of her boyfriend’s nine-month-old

____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
        Although Butler’s notice of appeal indicates that she is appealing
from the February 11, 2016 order denying her post-trial motions, the appeal
properly lies from the December 21, 2015 judgment of sentence. See
Commonwealth v. Kittelberger, 616 A.2d 1, 1 n.1 (Pa.Super. 1992) (“A
purported appeal from an order denying post-trial motions is procedurally
improper because the appeal in a criminal proceeding lies from the judgment
of sentence . . . .”).
       2
           18 Pa.C.S. § 2502(c).
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child. The child died from head trauma and other bodily injuries while under

Butler’s sole and exclusive care.    The plea agreement did not contain a

recommended or negotiated sentence.        On December 21, 2015, the trial

court sentenced Butler to 10 to 25 years’ incarceration.

      Butler filed timely post-trial motions to reconsider her sentence and to

withdraw her plea.     On February 11, 2016, the trial court denied both

motions. Butler filed a timely notice of appeal.

      Butler presents two questions for our review:

            1. Whether the trial court erred in denying Butler’s
               motion to withdraw her plea of nolo contendere as
               the plea was not a knowing, voluntary and intelligent
               plea?

            2. Whether the court erred in applying the sentencing
               guidelines using a minimum of 96 months instead of
               a minimum of 72 months?

Butler’s Br. at 5.

      First, Butler argues that her plea was not knowing or voluntary

because the trial court did not conduct a proper colloquy at the time of the

plea. Butler maintains the trial court did not ensure that she knew either the

nature of the charges against her or that, had she proceeded to trial, she

would be presumed innocent until proven guilty.

      This Court reviews a trial court’s denial of a motion to withdraw a plea

for an abuse of discretion. Commonwealth v. Miller, 748 A.2d 733, 735

(Pa.Super. 2000). When a defendant enters a plea of nolo contendere, the

plea is “treated the same as a guilty plea.” Id.



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      A trial court should not grant a post-sentence petition to withdraw a

plea unless the defendant shows manifest injustice, which occurs when a

defendant demonstrates that the plea was not entered into knowingly,

voluntarily, and intelligently.   Commonwealth v. Kpou, 153 A.3d 1020,

1023 (Pa.Super. 2016); see Commonwealth v. Islas, 156 A.3d 1185,

1188 (Pa.Super 2017) (noting that “when a defendant moves to withdraw a

guilty plea after sentencing, the standard is far more stringent” than when

the motion is filed before sentencing) (emphasis in original).       Before a

defendant enters a plea, the trial court must conduct an on-the-record

colloquy to ensure that the defendant is aware of his or her rights and the

consequences of the plea. Kpou, 153 A.3d at 1023. Pennsylvania Rule of

Criminal Procedure 590 requires that the trial court inquire into the following

six areas:

         (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 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 range 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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Pa.R.Crim.P. 590(C) cmt.; accord Commonwealth v. Lewis, 791 A.2d

1227, 1231 (Pa.Super. 2002).

      Courts review the “totality of the circumstances” to determine whether

a defendant entered a voluntary, intelligent, and knowing plea. Kpou, 153

A.3d at 1024. Further, the law presumes that a defendant who enters into a

plea is aware of what he or she is doing, and the defendant bears the burden

of proving otherwise.    Commonwealth v. Pollard, 832 A.2d 517, 523

(Pa.Super. 2003).

      Butler first maintains that she was unaware of the nature of the

charges before she entered her plea. The record belies her claim. Here, the

information filed against Butler listed the elements of criminal homicide.

Further, Butler completed and signed a nine-page written plea colloquy and

orally acknowledged the terms of the agreement. N.T., 10/5/15, at 5-6. In

the written colloquy, Butler initialed and signed that she understood the

charges and that her attorney had briefed her on the elements. In addition,

at the plea hearing, Detective Julie Wagner testified to the underlying facts.

Id. at 9-10. Although the trial court did not explicitly recite the elements of

the charge, we conclude that Butler was aware of the nature of the charges

when she entered the plea. Id. at 5, 9; see Commonwealth v. Morrison,

878 A.2d 102, 108 (Pa.Super. 2005) (stating that plea will not be invalidated

merely because trial court failed to outline elements of crimes at oral

colloquy).


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       Butler also claims that the plea colloquy was defective because the

trial court failed to inform Butler that she was “presumed innocent” until

found otherwise.       This claim lacks merit.   Butler reviewed, initialed, and

signed a written plea colloquy, which explained her rights and included a

statement regarding the presumption of innocence.          N.T., 10/5/15, at 5.

During the oral colloquy, Butler confirmed that she understood her rights

and was satisfied with her counsel’s assistance. Although the trial court did

not specifically state that Butler was “presumed innocent” at the plea

hearing, this omission does not render the colloquy defective.              See

Commonwealth v. Best, 480 A.2d 1245, 1248 (Pa.Super. 1984) (stating

that failure of trial court to “specifically advise” defendant that he or she is

presumed innocent does not render plea colloquy defective).

       Based on our review of the plea hearing transcript, the written

colloquy, and the record, we agree with the trial court that Butler knowingly,

voluntarily, and intelligently entered the nolo contendere plea. Therefore,

the trial court did not abuse its discretion in denying Butler’s post-sentence

motion to withdraw.3

____________________________________________


       3
         Butler also argues that the plea was involuntary because she
believed the applicable minimum sentence was 72 months and her counsel
had told her that the trial court would sentence her to a 72-month minimum.
To the extent that Butler is asserting a claim of ineffective assistance of plea
counsel, we note that except in limited circumstances not applicable here,
ineffective assistance of counsel claims should not be reviewed on direct
appeal. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013).



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       Next, Butler argues that the trial court violated the parties’ plea

agreement by applying a 24-month sentencing guideline enhancement,

which increased the standard guideline range from 72-240 months to 96-

240 months.4 We disagree.

       When analyzing a plea agreement claim such as Butler’s, the court

must first determine if the parties agreed to a specific sentence.          See

Commonwealth v. Parsons, 969 A.2d 1259, 1268 (Pa.Super. 2009).

“Assuming the plea agreement is legally possible to fulfill, when the parties

enter the plea agreement on the record, and the court accepts and approves

the plea, then the parties and the court must abide by the terms of the

agreement.” Id.

       At sentencing, the parties and the trial court discussed the applicability

of a particular sentencing enhancement because Butler pled nolo contendere

to third-degree murder and the victim was younger than 13 years old. The

enhancement provision reads as follows:

           (k) Third Degree Murder of a Victim Younger than Age 13
           Enhancement sentence recommendations. If the court
           determines that the victim of murder in the third degree as
           defined in 18 Pa.C.S. § 2502(c) was less than 13 years of
           age at the time of the offense, the court shall instead
           consider the Third Degree Murder of a Victim Younger than
____________________________________________


       4
        We note that Butler has included a Pennsylvania Rule of Appellate
Procedure 2119(f) statement in her brief. However, Butler’s claim does not
challenge the discretionary aspects of the trial court’s sentence, but rather
the trial court’s failure to accept the parties entire plea bargain. See
Commonwealth v. Parsons, 969 A.2d 1259, 1269 (Pa.Super. 2009).



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        Age 13 Enhancement. The enhancement specifies a range
        of sentences (i.e., standard range) that shall be considered
        by the court for each combination of Offense Gravity Score
        (OGS) and Prior Record Score (PRS). The Third Degree
        Murder of a Victim Younger than Age 13 Enhancement
        adds 24 months to the lower limit of the standard range
        and assigns the statutory limit as the upper limit of the
        standard range. The sentence imposed will be served
        consecutively to any other sentence the person is serving
        and to any other sentence imposed by the court (42
        Pa.C.S. § 9711.1).

204 Pa. Code 303.9(k).

     At the end of the sentencing hearing, the trial court stated:

        I am faced with an enhancement issue which in the Court’s
        humble opinion any discretion relative to that sentence I
        would think would be reserved for situations where there
        might be some type of mental illness involved or
        extraneous factors or a victim that is close to the age of 13
        and certainly not one that is close to the age of one year
        old.

N.T., 12/21/15, at 24.

     Although the written plea colloquy stated that the standard guideline

range was 72-240 months, the plea agreement stated:                “[E]xcept as

expressly provided otherwise herein, there is no other agreement as to

sentence or any other matter.”      N.T., 10/5/15, Ex. 1.    Further, at the

sentencing hearing, Butler agreed that the trial court was not bound by any

agreement regarding her sentence.     Id. at 10-11. Neither the sentencing

nor the plea hearing transcript indicates that Butler and the Commonwealth

agreed to a particular guideline range or that the enhancement would not

apply. Accordingly, we conclude that Butler’s claim lacks merit.

     Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2017




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