J-S65037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ALFREDO JUNIOR VARGAS,

                            Appellant                 No. 910 EDA 2014


            Appeal from the Judgment of Sentence February 4, 2014
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No.: CP-39-CR-0000626-2013


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 05, 2014

        Appellant, Alfredo Junior Vargas, appeals from the judgment of

sentence imposed pursuant to his negotiated nolo contendere plea to the

charges of possession with intent to deliver (PWID) heroin and conspiracy to

deliver heroin.1 Specifically, Appellant challenges the trial court’s denial of

his post-sentence motion to withdraw his plea. We affirm.

        We take the procedural and factual background of this matter from the

trial court’s April 16, 2014 opinion and our independent review of the record.

On October 7, 2012, at approximately 5:00 a.m., Pennsylvania State Police

Trooper Jonathan Gerken stopped a speeding car in which Appellant and
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*
    Retired Senior Judge assigned to the Superior Court.
1
    34 P.S. § 180-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
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three other individuals2 were travelling. After establishing probable cause,

Trooper Gerken executed a search warrant on the vehicle and seized 2.9

kilos of heroin, with an estimated street value of $1.2 million.

       On February 4, 2014, Appellant entered a written plea of nolo

contendere to the above charges, and the court conducted a full colloquy

with him on the record at his plea hearing.        In return for his plea, the

Commonwealth withdrew a count for possession of a controlled substance,

and recommended a total aggregate minimum sentence of three years’

imprisonment.      The same day, pursuant to the agreement, the trial court

sentenced Appellant to an aggregate term of not less than three nor more

than eight years’ incarceration, and found him RRRI eligible.

       On February 12, 2014, Appellant filed a motion to withdraw his nolo

contendere plea. After a hearing on February 28, 2014, the court denied the

motion. Appellant timely appealed.3

       Appellant raises one question for our review: “Did the trial court err in

denying the post-sentence motion to withdraw his plea of nolo contendere

where [Appellant] demonstrated that his plea resulted in a manifest

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2
  Although not part of the certified record, Appellant states that the three
other people “accepted plea offers.” (Appellant’s Brief, at 5).
3
  On March 31, 2014, Appellant filed a timely Rule 1925(b) statement
pursuant to the court’s order; the court filed a Rule 1925(a) opinion on April
16, 2014. See Pa.R.A.P. 1925.




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injustice?”       (Appellant’s    Brief,   at   4   (most   capitalization   omitted)).

Specifically, Appellant argues that he did not voluntarily and intelligently

enter his plea because he was reluctant to enter it, maintains his innocence,

and will be deported after serving his prison sentence. (See id. at 8, 12-

13). Appellant’s issue does not merit relief.4

       Our standard of review and the legal principles relevant to this matter

are well-settled.     Preliminarily, we observe that “[w]hen considering the

propriety of a trial court’s denial of a motion to withdraw a guilty plea, we

are bound by the determination of that court unless we find that it

committed an abuse of discretion.” Commonwealth v. Mobley, 581 A.2d

949, 952 (Pa. Super. 1990) (citation omitted).

       Further,

       by entering a nolo contendere plea, a defendant does not admit
       that he is guilty. As the United States Supreme Court has held,
       a plea of nolo contendere is a plea by which a defendant does
       not expressly admit his guilt, but nonetheless waives his right to
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4
  Pennsylvania Rule of Appellate Procedure 2119 provides, in pertinent part,
that the argument section of an appellant’s brief must contain pertinent
discussion and citation to authority, and references to the record. See
Pa.R.A.P. 2119(a)-(c). Here, the argument section of Appellant’s brief
contains two citations in support of boilerplate law on withdrawal of a guilty
plea, no record citations, and a one-paragraph “discussion” in which he
concludes that the court’s denial of his motion to withdraw the nolo
contendere plea rises to the level of “manifest injustice.” (Appellant’s Brief,
at 13; see id. at 12-13). However, despite these briefing deficiencies, we
will not find waiver where they do not preclude our meaningful appellate
review. See Commonwealth v. Levy, 83 A.3d 457, 461 n.2 (Pa. Super.
2013) (declining to find waiver where deficiencies did not impede meaningful
review).



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      a trial and authorizes the court for purposes of sentencing to
      treat him as if he were guilty. [T]he difference between a plea
      of nolo contendere and a plea of guilty is that, while the latter is
      a confession binding defendant in other proceedings, the former
      has no effect beyond the particular case. Thus, for purposes of
      proceedings relating to the charges, [a defendant] agree[s] to be
      treated as guilty of the crimes.

Commonwealth v. V.G., 9 A.3d 222, 226-27 (Pa. Super. 2010) (citations

and quotation marks omitted; emphasis in original).

      “[I]n terms of its effect upon a case, a plea of nolo contendere is

treated the same as a guilty plea.”    Commonwealth v. Lewis, 791 A.2d

1227, 1230 (Pa. Super. 2002), appeal denied, 806 A.2d 859 (Pa. 2002)

(citations omitted). “[A] defendant who attempts to withdraw a guilty plea

after sentencing must demonstrate prejudice on the order of manifest

injustice before withdrawal is justified. A showing of manifest injustice may

be established if the plea was entered into involuntarily, unknowingly, or

unintelligently.”   Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa.

Super. 2011) (citations and internal quotation marks omitted).

      Finally,

                   [i]n order for a guilty plea to be
            constitutionally valid, the guilty plea colloquy must
            affirmatively show that the defendant understood
            what the plea connoted and its consequences. This
            determination is to be made by examining the
            totality of the circumstances surrounding the entry of
            the plea. [A] plea of guilty will not be deemed
            invalid if the circumstances surrounding the entry of
            the plea disclose that the defendant had a full
            understanding of the nature and consequences of his
            plea and that he knowingly and voluntarily decided
            to enter the plea.

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       Our law presumes that a defendant who enters a guilty plea was
       aware of what he was doing. He bears the burden of proving
       otherwise. [Commonwealth v.] Pollard, 832 A.2d [517,] 523
       [(Pa. Super. 2003)] (citations omitted). “[W]here the record
       clearly demonstrates that a guilty plea colloquy was conducted,
       during which it became evident that the defendant understood
       the nature of the charges against him, the voluntariness of the
       plea is established.” Commonwealth v. McCauley, 797 A.2d
       920, 922 (Pa. Super. 2001) [(citation omitted)].

Commonwealth v. Rush, 909                      A.2d 805, 808   (Pa. Super. 2006).

Therefore, “[a] defendant is bound by the statements he makes during his

plea colloquy, and may not assert grounds for withdrawing the plea that

contradict statements made when he pled.”               McCauley, supra at 922

(citation omitted).

       Here, in his written nolo contendere plea statement,5 Appellant

affirmed that he was not being treated for mental illness, he was aware that

he was giving up his right to a jury trial, that he knew the nature of the

charges to which he was pleading nolo contendere, and that he understood

that he would have limited appellate rights.           (See Nolo Contendere Plea

Statement, 2/04/14, at 2 ¶ 7; 3-5 ¶¶ 10-20, 22; 6 ¶ 26; 7 ¶ 32). Appellant

agreed that he was satisfied with counsel’s assistance, had enough time to

talk with him about his case and ask any questions, and confirmed that his

attorney explained what his sentence could be if he went to trial. (See id.
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5
  Appellant’s written plea was in Spanish, with English translations, and he
had a Spanish translator at the nolo contendere plea hearing. (See Nolo
Contendere Plea Statement, 2/04/14, at 1-9; N.T. Guilty Plea Hearing,
2/04/14, at 2).



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at 7 ¶ 29; 8 ¶¶ 38-41). Importantly, Appellant stated that no one forced or

threatened him to enter the plea, that he was doing so of his own free will,

and that he had received no other promises other than those in the plea

bargain.      (See id. at 8 ¶¶ 34-37).      Appellant acknowledged that he

understood “that the decision to enter a [nolo contendere] plea [was his]

and [his] alone; that [he] [did] not have to enter a plea of guilty . . . and

that no one [could] force [him] to enter a [nolo contendere] plea[.]” (Id. at

9 ¶ 44).

      At the February 4, 2014 hearing, the court confirmed that all of the

answers in the written statement were true and correct, that Appellant had

the opportunity to speak with his attorney about the case, that he was

satisfied with counsel’s representation, that he knew what he was doing, and

that no one forced or threatened him to take the nolo contendere plea.

(See N.T. Nolo Contendere Plea Hearing, 2/04/14, at 7-9, 12).         Before

explaining the charges against Appellant and what the Commonwealth would

have to prove at trial, the court stated:

             Now, I’m going to repeat the important things in here, and
      if you have any questions, you stop me and I’ll try to answer
      them. You can enter these pleas today, and you’ll then be
      sentenced. That’s your one choice, your other choice is to go to
      a trial. And before I sentence you, at any point, if you choose
      the second option and want to go to a trial just speak up and
      we’ll have a trial. . . .

(Id. at 9).




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       Following the above statement, Appellant indicated that he understood

the trial court’s explanation of the PWID and conspiracy charges against

him,   the   maximum      sentence   each   carried,   and   what   facts   the

Commonwealth would have to prove at trial. (See id. at 12-14). Shortly

thereafter, Appellant stated that he knew his rights, but he had no choice

but to enter a plea where his co-defendants had already pleaded guilty and

he did not have money to hire an attorney to prove that he does not sell

drugs. (See id. at 14). In response, the following exchange occurred:

       [THE COURT].       Well, you have to make a decision, sir. You do
       have a choice. Your choice is to go with the plea or to go to
       trial. You do have an attorney, and he’s a competent attorney,
       and he practices criminal law all the time. So you have to make
       a decision. Plea or go to trial, and it doesn’t matter to me. It’s
       up to you, sir, but now is decision time.

       [APPELLANT].      All right. I don’t want to go to trial because
       the other three already pled and─

       [THE COURT].       Do you want to enter these pleas? If you don’t
       answer, or you’re not sure, we’re going to have a trial, so you
       have to tell me, sir. I said that after hesitation.

       [APPELLANT].       Okay. I accept my─because they pled guilty
       and I can’t fight with just by myself.

       [THE COURT].      Sir, do you want the nolo contendere pleas
       with the plea bargain or trial? And if you hem and haw, we start
       your trial. You tell me what you want to do. It’s one or the
       other. But give me a clear answer, please.

       [COUNSEL]:        Si or no?

       THE COURT:       That’s not going to answer my question.       Do
       you want the pleas with the plea bargain or the trial?




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         [APPELLANT]:       I plead [nolo contendere] according to the
         agreement.

(Id. at 14-15). After the above exchange, the Commonwealth detailed the

facts surrounding the night in question that it would attempt to prove at

trial.   (See id. at 15-16).      The court then discussed “immigration issues”

with Appellant, explaining that it did not make decisions on deportation, and

confirming that counsel had explained to him that “following his conviction

he [would] likely . . . be deported on completion of his prison sentence.”

(Id. at 17).

         Accordingly, based on the foregoing, Appellant’s arguments that he did

not enter into a knowing and voluntary plea because “[h]e was steadfast in

his denial of involvement in any criminal activity[,]” he reluctantly entered

his plea “only at the prodding by the trial court,” and the effect of taking the

plea would result in deportation, lack merit.6 (Appellant’s Brief, at 8). There

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6
  Indeed, Appellant’s claim that the trial court “prodd[ed],” (see Appellant’s
Brief, at 8), him into taking the plea is belied by the record. The court
repeatedly advised Appellant that it was his decision whether to plead nolo
contendere, and that unless he expressly stated that he wanted to enter
such a plea, trial would commence (See N.T. Nolo Contendere Plea Hearing,
2/04/14, at 9, 14-15). In response to this choice, Appellant unmistakably
stated he wanted to enter the plea. (See id. at 15).

       Also, Appellant’s argument that his alleged innocence renders his plea
involuntary and creates a manifest injustice lacks merit. (See Appellant’s
Brief, at 8). By entering a nolo contendere plea, Appellant did not admit
guilt, but instead allowed the court to treat him as if he were guilty for
sentencing purposes. See V.G., supra at 226. Therefore, Appellant’s
claim of innocence does not conflict with his plea.
(Footnote Continued Next Page)


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is absolutely no evidence that Appellant lacked “a full understanding of the

nature and consequences” of pleading nolo contendere.         Rush, supra at

808 (citation omitted). Therefore, we conclude that the court did not abuse

its discretion when it found that Appellant “knowingly and voluntarily

decided to enter the plea.” Id. (citation omitted); see also Mobley, supra

at 952. Appellant’s issue lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2014




                       _______________________
(Footnote Continued)


       Finally, Appellant’s argument that his plea must be withdrawn because
he faces deportation has no merit. (See Appellant’s Brief, at 8, 13). It is
well-settled that “[t]he law does not require that [the defendant] be pleased
with the outcome of his decision to enter a plea of guilty: All that is required
is that [his] decision to plead guilty be knowingly, voluntarily and
intelligently made.” Commonwealth v. Anderson, 995 A.2d 1184, 1192-
92 (Pa. Super. 2010), appeal denied, 9 A.3d 626 (Pa. 2010) (citation
omitted). In fact, Appellant knew of the deportation issue when he pleaded
nolo contendere and that he would “probably be deported on completion of
his prison sentence.” (N.T. Nolo Contendere Plea Hearing, 2/04/14, at 17).
This argument fails.



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