J-S64008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

OMAR WRIGHT

                            Appellant                 No. 3646 EDA 2015


         Appeal from the Judgment of Sentence Entered June 12, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0011468-2012


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 05, 2016

        Appellant Omar Wright appeals from the June 12, 2015 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County (“trial

court”), following his guilty plea to third degree murder and robbery.1 Upon

review, we affirm.

        The facts and procedural history underlying this case are undisputed.

On July 6, 2012, Appellant was arrested in connection with a robbery of a

bar that resulted in the death of bartender, George Fox.       Appellant was

charged with murder, conspiracy, robbery, theft, receiving stolen property

and possessing the instrument of a crime (“PIC”). On December 15, 2014,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(c), and 3701(a)(1)(i).
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prior to trial, Appellant pled guilty to third degree murder and robbery and

negotiated a sentence of 20 to 40 years’ imprisonment for third degree

murder and followed by 4 to 10 years’ imprisonment for robbery.             In

exchange,   the    Commonwealth    nolle   prossed   the   remaining   charges.

Specifically, in pleading guilty, Appellant agreed with the following facts as

summarized by the Commonwealth:

     On Sunday, June 24, 2012, at about 1:16 in the morning, 3rd
     District police officers responded to a robbery in progress,
     unresponsive male inside T Bars Tavern at 8th and Jackson
     Streets in Philadelphia. Police arrived on location and found the
     victim, later identified as George Fox, [a] 44-year old white
     male, suffering from stab wounds to the torso.          Medic 43
     responded and pronounced the victim deceased at the scene at
     1:25 a.m.

            Our testimony would further include that of the Assistant
     Medical Examiner, Dr. Gary Collins, who would testify that he
     examined the remains and found George Fox had been stabbed
     five times, suffered stab wounds to his chest, left shoulder, left
     arm, forearm, right cheek, and that the cause of death was stab
     wound to the chest; that is, specifically to the heart, and the
     manner of death was homicide.

            ....

           We would further call witness, Angela Bennett, who would
     state that she conversed with [Appellant] previous to the murder
     inside the bar, she knew [Appellant] from the bar, she identified
     [Appellant] to Homicide Detectives, have a signed written
     statement stating that she saw [Appellant] leave and re-enter
     the bar wearing dark clothing, including a hoody and white
     gloves, and that he stabbed the bartender and took money out
     of the register and fled.

           We would also call witness, Tiffany Caesar, who would
     state that she knew [Appellant], for a few weeks from the bar.
     She was inside the bar at the time of the homicide, that she did
     converse with [Appellant] inside the bar previous to the
     homicide, that he left and then returned. She knew [Appellant]
     as Oh Dog, and when he returned to the bar, he walked behind
     the bar, stabbed the bartender, she saw the bartender slump to
     the floor, she saw [Appellant] take cash, and she identified his
     photograph for detectives, signed his photograph and signed a
     written statement for the detectives.


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N.T. Guilty Plea, 12/15/14, at 7-9. A sentencing hearing was held on June

12, 2015. At the hearing, prior to imposition of sentence, Appellant moved

to withdraw his guilty plea based on his allegation that his counsel was

ineffective in failing to advise him that his negotiated sentence would be

consecutive. N.T. Sentencing, 6/12/12, at 3-5 (“I don’t feel as though I was

helped properly.”). On the same day, the trial court denied Appellant’s pre-

sentence motion to withdraw and advised Appellant to file a post-sentence

motion to withdraw his guilty plea. See id. (“You have 10 days from today’s

date in which to ask to reconsider your sentence and to withdraw your

plea.”).    On June 15, 2015, Appellant filed a post-sentence motion to

withdraw the guilty plea, which the trial court denied on November 5, 2015.2

Appellant timely appealed to this Court. The trial court ordered Appellant to

file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

Appellant complied, raising two assertions of error:

       1. [Appellant] is entitled to have his case remanded to the
       trial/sentencing court as that court erred and abused its
       discretion as a matter of law when it denied [Appellant’s] motion
       to withdraw guilty plea on June 12, 2015.

       2. [Appellant] is entitled to have his case remanded to the
       trial/sentencing court as that court erred and abused its
       discretion as a matter of law when it denied [Appellant’s] post[-
       ]sentence motion filed June 15, 2015[.]


____________________________________________


2
  Given the fact that Appellant already had moved to withdraw his guilty plea
prior to sentencing on June 12, 2015, we need not consider his subsequent
post-sentence motion to withdraw the guilty plea as it was superfluous and
redundant.



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Rule 1925(b) Statement, 12/23/15.              In response, the trial court issued a

Pa.R.A.P. 1925(a) opinion, concluding that Appellant failed to advance a fair

and just reason to withdraw his guilty plea.

       On appeal,3 Appellant argues only that the trial court erred in failing to

allow Appellant to withdraw his guilty plea prior to sentencing. We disagree.

       It is well-settled the decision whether to permit a defendant to

withdraw a guilty plea is within the sound discretion of the trial court.

Commonwealth v. Unangst, 71 A.3d 1017, 1019 (Pa. Super. 2013)

(quotation omitted).      Although no absolute right to withdraw a guilty plea

exists in Pennsylvania, the standard applied differs depending on whether

the defendant seeks to withdraw the plea before or after sentencing. When

a defendant seeks to withdraw a plea after sentencing, he “must

demonstrate prejudice on the order of manifest injustice.” Commonwealth

v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011).                  However, a pre-

sentence motion to withdraw is decided under a more liberal standard.

Pursuant to Pennsylvania Rule of Criminal Procedure 591: “[a]t any time

before the imposition of sentence, the court may, in its discretion, permit,

upon motion of the defendant, or direct, sua sponte, the withdrawal of a

plea of guilty or nolo contendere and the substitution of a plea of not guilty.”

Pa.R.Crim.P. 591(A).

____________________________________________


3
  We note that Appellant here does not expressly challenge the validity of his
plea agreement.



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      In the seminal decision Commonwealth v. Forbes, 299 A.2d 268

(Pa. 1973), our Supreme Court delineated the parameters for granting a

pre-sentence motion to withdraw:

      [I]n determining whether to grant a pre-sentence motion for
      withdrawal of a guilty plea, ‘the test to be applied by the trial
      courts is fairness and justice.’ If the trial court finds ‘any fair and
      just reason’, withdrawal of the plea before sentence should be
      freely permitted, unless the prosecution has been ‘substantially
      prejudiced.’

Id.   at   271   (internal   citations   omitted).     In   Commonwealth        v.

Carrasquillo, 115 A.3d 1284 (Pa. 2015), our Supreme Court reaffirmed the

Forbes test, noting that:

      [The] Forbes decision reflects that: there is no absolute right to
      withdraw a guilty plea; trial courts have discretion in
      determining whether a withdrawal request will be granted; such
      discretion is to be administered liberally in favor of the accused;
      and any demonstration by a defendant of a fair-and-just reason
      will suffice to support a grant, unless withdrawal would work
      substantial prejudice to the Commonwealth. See Forbes, []299
      A.2d at 271.

Carrasquillo, 115 A.3d at 1291-92.         A sincere and plausible assertion of

innocence has been held to satisfy the “fair and just reason” standard

enunciated in Forbes for granting a pre-sentence motion to withdraw a

guilty plea. See id. at 1292 (“[A] defendant’s innocence claim must be at

least plausible to demonstrate, in and of itself, a fair and just reason for

presentence withdrawal of a plea.”).

      The Supreme Court arrived at the same conclusion in a companion

case decided the same day: Commonwealth v. Hvizda, 116 A.3d 1103

(Pa. 2015). In Hvizda, the defendant pled guilty to first-degree murder and



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PIC for the stabbing death of his estranged wife.         Id. at 1104.     At his

sentencing hearing two months later, the defendant sought to withdraw his

plea, asserting “I’m here to maintain my innocence in the charge of murder

in the first degree.” Id. (record citation omitted). At a subsequent hearing,

the defendant again stated he was innocent, but offered no evidence in

support of his claim.     The Commonwealth requested the court deny the

motion, and, in support, introduced into evidence the defendant’s telephone

conversations from prison in which he stated that although he “‘did it’ . . . he

wished to stand trial to ‘get some of the story out.’”     Id.   The trial court

thereafter denied the motion to withdraw, finding “the Commonwealth had

‘presented compelling and unique evidence to establish [the defendant’s]

bald assertion of innocence was at best pretextual and an attempt to

manipulate the system.’”       Id. at 1105.      A divided panel of this Court

reversed on appeal based upon its belief that, under Commonwealth v.

Katonka, 33 A.3d 44, 49 (Pa. Super. 2011) (en banc), “credibility

assessments    relative   to   a   defendant’s    claim   of   innocence     were

impermissible.” Id. The Supreme Court, disagreed with the decision of this

Court and opined:

      In the companion case of Carrasquillo, . . . we have
      determined that a bare assertion of innocence—such as [the
      defendant] provided as the basis for withdrawing his guilty
      plea—is not, in and of itself a sufficient reason to require a court
      to grant such a request. See Carrasquillo, []115 A.3d at 1285.
      Accordingly, and for the reasons set forth more fully in that case,
      the common pleas court did not err in denying [the defendant’s]
      withdrawal motion.

Hvizda, 116 A.3d at 1107.

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      With this legal standard in mind, we now turn to Appellant’s argument

that the trial court abused its discretion in denying his pre-sentence motion

to withdraw the guilty plea.    Appellant argues that his trial counsel was

ineffective in failing to advise him that the negotiated sentence sub judice

would be consecutive. Based on our review of the record, we agree with the

trial court’s conclusion that Appellant failed to assert a claim of innocence,

let alone proffer any fair and just reason for withdrawing his guilty plea.   As

the trial court explained:

      In the case at bar, no claim of innocence has ever been made.
      [Appellant’s] only allegations were that he was unaware that the
      sentence for the robbery was going to run consecutive to the
      third degree murder, leaving an aggregate sentence of twenty-
      four to fifty years’ incarceration, and he did not think he was
      helped by his counsel. Such claims belie the record. On the first
      page of [Appellant’s] written guilty plea agreement, it is noted
      not once, but twice, that the agreement is for twenty-four to fifty
      years’ incarceration. The agreement is signed on the third page
      and initialed on every page by [Appellant]. During the plea
      hearing, the court asked [Appellant] if he went over the plea
      agreement, if he read and understood every paragraph and if
      the signature on the third page was indeed his signature. In
      fact, the following discussion occurred during the hearing:

      The [trial c]ourt: The maximum you could get on this would be
      50 to 100 years in jail. You are getting 24 to 50, so that is going
      to be a legal sentence. Do you understand that?

      [Appellant]: “Yes."

            [Appellant] also stated that he was satisfied with his
      attorney’s representation up until that point.

            In the instant case, [Appellant’s] assertions were made at
      the time of allocution. No motion to withdraw the plea had been
      presented in the six months since the entry of the plea.
      [Appellant’s] claim was completely implausible in light of the
      written and oral statements during the negotiated plea hearing.
      No fair and just reason presented to withdraw the plea, and no
      claim of innocence has ever been made. [Appellant] merely
      wanted to reduce the negotiated term of his incarceration.



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Trial     Court   Opinion,   1/29/16,     at   6-7   (internal   citations   omitted).

Accordingly, because he did not assert a claim of innocence or otherwise

proffer any fair and just reason for withdrawing his guilty plea, Appellant is

not entitled to relief.

        The Commonwealth relies on Commonwealth v. Prendes, 97 A.3d

337 (Pa. Super. 2014) for the proposition that the higher post-sentence

standard of “manifest injustice” applies sub judice on account of Appellant’s

entering into a negotiated plea agreement. The Commonwealth notes that

Prendes applied the rationale outlined in Commonwealth v. Lesko, 467

A.2d 307 (Pa. 1983), in holding that because the defendant’s “plea

agreement included a negotiated sentence[, t]he trial court accepted the

guilty plea with the negotiated sentence[, and thus the defendant] was fully

aware of the sentence he would receive, the ‘manifest injustice’ standard

applied.”    Prendes, 97 A.3d at 354.           In Hvizda, however, our Supreme

Court disapproved of Lesko’s “idiosyncratic approach to presentence

withdrawal.” Hvizda, 116 A.3d at 1106. In so doing, the Court sub silentio

overruled this Court’s conclusion in Prendes upon which the Commonwealth

relies.    Accordingly, we find Prendes’ application of Lesko is no longer

binding authority and reject the Commonwealth’s assertion that the manifest

injustice standard be applied to this case simply because Appellant entered

into a negotiated guilty plea.          Even if the higher standard of manifest

injustice applied, Appellant would not have been able to meet it.




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     Insofar as Appellant argues that his trial counsel rendered ineffective

assistance, we decline to consider the ineffectiveness claim at this juncture

based on our Supreme Court’s decision in Commonwealth v. Holmes, 79

A.3d 562 (Pa. 2013).    In Holmes, our Supreme Court reaffirmed its prior

holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent

certain circumstances, claims of ineffective assistance of counsel should be

deferred until collateral review under the Post Conviction Relief Act (PCRA).

See Holmes, 79 A.3d at 576.        The specific circumstances under which

ineffectiveness claims may be addressed on direct appeal are not present in

the instant case.    See id. at 577-78 (holding that the trial court may

address claims of ineffectiveness where they are “both meritorious and

apparent from the record so that immediate consideration and relief is

warranted,” or where the appellant’s request for review of “prolix”

ineffectiveness claims is “accompanied by a knowing, voluntary, and express

waiver   of   PCRA   review”).    Accordingly,   Appellant    must   raise   his

ineffectiveness claim in a timely-filed PCRA petition. We, however, express

no opinion on the merits of such effectiveness claim.

     Finally, we reject Appellant’s suggestion that the trial court erred in

declining to allow him an opportunity to be heard on his pre-sentence

motion to withdraw the guilty plea.   Our review of the guilty plea hearing

transcript reveals that Appellant’s contention lacks merit.   Specifically, the

trial court asked Appellant: “Is there anything else you want to say?” N.T.

Sentencing, 6/12/15, at 4. Appellant replied: “I don’t understand how I’m

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being forced into doing this when this is not what I really wanted to do. I

explained that to [trial counsel] before then, before you even were the

judge. Even then we didn’t see eye to eye. We never seen eye to eye.” Id.

at 4-5. The trial court then again asked Appellant: “Is there anything else?”

Id. at 5. Appellant did not respond. Accordingly, as the guilty plea hearing

transcript indicates, Appellant indeed was provided an opportunity be heard

in connection with his pre-sentence motion to withdraw the guilty plea.

     Judgment of sentence affirmed.

     Judge Solano joins this memorandum.

     Justice Stevens files a concurring and dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2016




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