J-A31025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

STEVEN CAIATI

                            Appellant                     No. 559 EDA 2016


              Appeal from the Judgment of Sentence June 28, 2012
                 In the Court of Common Pleas of Wayne County
               Criminal Division at No(s): CP-64-CR-0000063-2012


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                              Filed February 27, 2017

       Steven Caiati appeals from the June 28, 2012 judgment of sentence

entered in the Wayne County Court of Common Pleas following his guilty

plea to three counts of arson (recklessly placing person in danger of death or

bodily injury).1 We affirm.

       On April 5, 2012, Caiati entered the aforementioned guilty plea. On

June 28, 2012, the trial court sentenced Caiati to three concurrent terms of

72 to 144 months’ incarceration.2          On June 21, 2013, Caiati filed a timely
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       *
           Former Justice specially assigned to the Superior Court.
       1
           18 Pa.C.S. § 3301(a)(1)(i).
       2
        Caiati also pled guilty to one count of recklessly endangering another
person (“REAP”) at CP-64-CR-0000062-2012. He was sentenced to 1 to 2
years’ incarceration, consecutive to his sentence for the arson convictions.
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PCRA petition seeking reinstatement of his appeal and post-sentence rights

nunc pro tunc.      Following the filing of a Turner/Finley3 letter by counsel,

the trial court denied the petition.           Caiati appealed, and on December 1,

2014, this Court concluded that the PCRA court erred in dismissing Caiati’s

original petition without a hearing. Accordingly, we remanded to the PCRA

court to determine whether Caiati’s appeal and post-sentence rights should

be restored.

       At Caiati’s request, on January 25, 2015, the PCRA court appointed

counsel on remand.         On March 27, 2015, Caiati filed an amended PCRA

petition.   On November 23, 2015, the PCRA court held a hearing.                On

December 28, 2015, the PCRA court granted Caiati relief and restored his

post-sentence and appeal rights.

       On January 8, 2016, Caiati filed post-sentence motions to withdraw his

guilty plea and to reconsider his sentence.             The trial court denied both

motions on January 19, 2016. On February 1, 2016, Caiati filed a motion to

reconsider the denial of his motion to withdraw guilty plea.4          On February

18, 2016, Caiati filed a notice of appeal.
____________________________________________


       3
      Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
       4
         In his motion to reconsider, Caiati also asked the trial court to
incorporate the notes of testimony from the November 23, 2015 PCRA
hearing. The trial court did not act on this motion and lost jurisdiction to
reconsider its ruling. See 42 Pa.C.S. § 5505; Pa.R.A.P. 1701. However, in
its opinion, the trial court specifically referenced the notes of testimony from
(Footnote Continued Next Page)


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      Caiati raises two issues on appeal:

          1. Does [Caiati]’s judgment of sentence reflect manifest
             injustice where it is clear from the written guilty plea
             colloquy and testimony that [Caiati] was promised a
             specific sentence to induce his guilty plea where the
             promised sentence was neither agreed upon by the
             parties nor the court warranting the judgment of
             sentence be vacated and the case remanded for trial?

          2. Whether the trial court erred and abused its discretion
             in failing to grant [Caiati]’s motion to withdraw his
             guilty plea where there was manifest evidence that the
             guilty plea upon which he was sentenced was not
             knowing, intelligent and voluntary based upon evidence
             of the written guilty plea colloquy, and through
             testimony, that promises outside of the guilty plea
             agreement had been made with respect to sentencing
             which were false and/or fabricated?

Caiati’s Br. at 5 (trial court answers omitted). Because both issues assert

that the trial court improperly denied his motion to withdraw guilty plea

because he proved a manifest injustice, we address Caiati’s issues together.

      Caiati argues that the trial court abused its discretion in denying his

motion to withdraw guilty plea and incorrectly determined that there was no

manifest injustice. According to Caiati, his plea counsel advised him, as well

as members of his family, that if he pled guilty to REAP and three counts of

arson, the trial court would sentence him to an aggregate term of 3 to 6

years’ incarceration.      Caiati’s Br. at 18.    Caiati contends that plea counsel
                       _______________________
(Footnote Continued)

the PCRA hearing. See Statement of Reasons, 4/13/16, at 2-3 (“1925(a)
Op.”). Because the trial court incorporated these notes of testimony into its
decision and the notes of testimony are included in the certified record on
appeal, we shall consider the PCRA hearing notes of testimony.



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then led him through the written plea colloquy, instructing him “that the plea

and promised sentence could only be completed” if Caiati checked boxes

stating that no one had made promises to him outside of the plea colloquy.

Id. In support of his position, Caiati notes that he amended an answer from

“Yes” to “No” on his written colloquy, which asked whether any promises had

been made to him outside of the colloquy. Id. Caiati also argues that the

trial court failed to inquire into any such promises. Id. at 19. According to

Caiati, the PCRA court “abused its discretion in failing to grant [Caiati’s]

post-sentence request to withdraw his guilty plea given the flaws in the

colloquy and obvious lack of understanding demonstrated by [Caiati] arising

from promises made to him.” Id. at 22.

      “[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. Pantalion, 957 A.2d

1267, 1271 (Pa.Super. 2008). “A plea rises to the level of manifest injustice

when it was entered into involuntarily, unknowingly, or unintelligently.”

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

(quoting Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super. 1999)).

         To ascertain whether [a]ppellant acted in such manner, we
         must examine the guilty plea colloquy. The colloquy must
         inquire into the following areas: (1) the nature of the
         charges; (2) the factual basis of the plea; (3) the right to
         trial by jury; (4) the presumption of innocence; (5) the
         permissible range of sentences; and (6) the judge's
         authority to depart from any recommended sentence. This
         Court evaluates the adequacy of the guilty plea colloquy
         and the voluntariness of the resulting plea by examining

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         the totality of the circumstances surrounding the entry of
         that plea.

Id. at 383-84 (internal citations and quotation marks omitted). “We will not

disturb the decision of the [trial] court absent an abuse of discretion.”

Commonwealth v. Broaden, 980 A.2d 124, 128 (Pa.Super. 2009).

“Defendants who plead guilty are “bound by [their] statements made during

a plea colloquy, and may not successfully assert claims that contradict such

statements.”    Muhammad, 794 A.2d at 384.             Further, “[a] criminal

defendant who elects to plead guilty has a duty to answer questions

truthfully. We cannot permit a defendant to postpone the final disposition of

his case by lying to the court and later alleging that his lies were induced by

the prompting of counsel.” Commonwealth v. Scott, 465 A.2d 678, 680

(Pa.Super. 1983) (quoting Commonwealth v. Brown, 363 A.2d 1249,

1253 (Pa.Super. 1976)).

      In its Rule 1925(a) opinion, the trial court explained its reasons for

denying the post-sentence motion:

             At the PCRA hearing held on November 23, 2015,
         [Caiati] testified that he initially answered “yes” to
         Question 35 of the written guilty plea colloquy because
         trial counsel promised [him] that he would receive three
         (3) to six (6) years of imprisonment if he entered a plea of
         guilty. Question 35 asks: Have any promises been made
         to you to enter a plea of guilty other than any plea
         agreement made by you or your attorney? Based on
         [Caiati]’s testimony, trial counsel advised [Caiati] that his
         answer to Question 35 could not be “yes.” In response,
         [Caiati] testified he asked trial counsel what would happen
         if the Judge decided not to give him three (3) to six (6)
         years of imprisonment. Trial counsel’s response, according
         to [Caiati], was that she would file an appeal.


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              [Caiati]’s testimony from the PCRA hearing held on
           November 23, 2015, does not support [Caiati]’s claim that
           he entered the guilty plea under the manifestly false belief
           that the court would impose a predetermined, certain
           and/or agreed upon term of sentence in exchange for
           and/or as a condition of his guilty plea. Based on [Caiati]’s
           testimony, [he] was aware that sentencing was within the
           discretion of the trial judge. [Caiati]’s awareness is further
           supported by his answer “yes” to Question 48 of the
           written plea colloquy.      Question 48 asks:      Has your
           attorney explained to you that the plea you are entering is
           considered an “open” plea, meaning that the sentence will
           be determined entirely by the judge and that no
           agreement has been made with the Commonwealth
           concerning the duration of any possible incarceration?
           Therefore, the trial court did not err by determining that
           [Caiati]’s guilty plea was knowingly, intelligent and
           voluntary.

1925(a) Op. at 2-3.

       We conclude that Caiati’s alleged misunderstanding does not rise to

the level of manifest injustice, and, thus, the trial court properly denied the

motion. Despite attesting to the fact that the answers on his plea colloquy

form were correct to the best of his knowledge, see Written Plea Colloquy,

3/13/12, at 9, and giving sworn testimony indicating that he understood the

nature of his plea,5 see N.T. Plea at 1-11, Caiati asserts that counsel
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       5
         We also conclude that the trial court conducted the appropriate
inquiries through written and oral colloquy. During the trial court’s colloquy,
Caiati indicated that he understood the nature of the charges, the factual
basis of the plea, his right to a trial by jury, the presumption of innocence,
the permissible range of sentences (including the statutory maximum), and,
most importantly, the judge’s authority to depart from any recommended
sentence. See N.T., 4/5/12, at 1-11 (“N.T. Plea”); Written Plea Colloquy,
3/13/12. The trial court also inquired into Caiati’s mental health and
prescribed medication, asking him whether that medication made him
(Footnote Continued Next Page)


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induced him to enter into the plea and “go along with the process” to obtain

a favorable sentence.         N.T., 11/23/15, at 19, 25-26.           While trial counsel

admitted that she might have used “three to six years” as an example in

order to explain that Caiati’s minimum sentence could not be greater than

half the maximum sentence, she denied promising him a specific sentence.

Id. at 34.    Trial counsel also stated that she explained the nature of the

open plea and did not direct Caiati to fill out the written plea colloquy in

certain way. Id. at 34-36. Thus, the crux of Caiati’s argument balances on

the credibility of Caiati’s trial counsel versus his own credibility and that of

family members who testified on his behalf.                 We defer to a trial court’s

credibility determinations, as the trial court is in the best position to observe

witnesses’ demeanor.6         See Commonwealth v. Johnson, 966 A.2d 523,

539 (Pa. 2009).         The trial court assessed these witness and found trial

counsel credible, a decision that we will not disturb on appeal.

      Accordingly, we conclude that the trial court did not abuse its

discretion   in   finding     that   Caiati      entered   his   guilty   plea   knowingly,

intelligently, and voluntarily, and, therefore, Caiati failed to establish a

manifest injustice.
                       _______________________
(Footnote Continued)

“unable to understand what [he] was doing here today,” to which Caiati
responded “no.” N.T. Plea at 8.
      6
        The Honorable Raymond L. Hamill heard both Caiati’s PCRA and post-
sentence motion to withdraw guilty plea; for simplicity, we refer to Judge
Hamill’s findings in the PCRA context as those of the trial court.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2017




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