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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
JAYRON RAYMOND DUDLEY,                   :          No. 700 WDA 2014
                                         :
                        Appellant        :


          Appeal from the Judgment of Sentence, March 27, 2014,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0012381-2013


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 24, 2015

      Jayron Raymond Dudley appeals from the judgment of sentence of

March 27, 2014, following his convictions of one count each of possessing a

firearm with manufacturer number altered, carrying a firearm without a

license, persons not to possess/use firearms, tampering with physical

evidence, false identification, and criminal mischief.           We affirm the

convictions, but vacate the sentence for false identification.

      On March 27, 2014, appellant entered an open guilty plea to the above

charges. An additional charge of receiving stolen property was withdrawn as

part of the plea agreement. The trial court conducted a plea colloquy on the

record, and appellant also completed a written guilty plea colloquy. (Notes

of testimony, 3/27/14 at 37-42; docket #6.) Appellant received a sentence

of three to six years’ incarceration for possession of a firearm with
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manufacturer number altered, and two years’ consecutive probation for

tampering with physical evidence.      Appellant also received a sentence of

two years’ concurrent probation for false identification, with no further

penalty at the remaining counts; therefore, appellant’s aggregate sentence

was three to six years’ incarceration followed by two years of reporting

probation.1

     On April 3, 2014, appellant filed a timely post-sentence motion to

withdraw his guilty plea, which was denied on April 4, 2014.          This timely

appeal followed on May 2, 2014. On June 16, 2014, appellant was ordered

to file a concise statement of errors complained of on appeal within 21 days

pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; appellant timely complied

on June 26, 2014, and on September 15, 2014, the trial court filed a

Rule 1925(a) opinion.

     Appellant has raised the following issues for this court’s review:

              1.   Did the Trial Court abuse its discretion when it
                   refused to grant Appellant an Evidentiary
                   Hearing on his Post-Sentence Motion seeking
                   to withdraw his guilty plea?

              2.   Did the Trial Court, in imposing a two-year
                   probation sentence on Count Six [(false
                   identification to law enforcement authorities)]
                   of Allegheny County Criminal Complaint
                   No. 2013-12381, impose an illegal sentence on
                   that count?


1
   Appellant’s sentence on count one, the firearms charge, was in the
mitigated range of the sentencing guidelines. (Notes of testimony, 3/27/14
at 49.)


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Appellant’s brief at 3.

      In his first issue on appeal, appellant argues that the trial court abused

its discretion by failing to hold an evidentiary hearing on appellant’s

post-sentence motion for withdrawal of his guilty plea. Pennsylvania Rule of

Criminal Procedure 720, governing post-sentencing procedures, provides, in

relevant part:   “(b) Hearing; Argument.      The judge shall also determine

whether a hearing or argument on the motion is required, and if so, shall

schedule a date or dates certain for one or both.”                Pa.R.Crim.P.,

Rule 720(B)(2)(b), 42 Pa.C.S.A.

            Appellant next asserts the trial court erred by not
            holding a hearing on his motion to withdraw his plea
            of nolo contendere. Pennsylvania Rule of Criminal
            Procedure [720] does not require a hearing to be
            held to deal with a motion to withdraw a plea of
            guilty; rather, it merely states the trial court may
            schedule a hearing on the motion. Commonwealth
            v. Savilla, 338 Pa.Super. 292, 487 A.2d 971 (1985).
            Therefore, the decision whether to hold a hearing is
            left to the discretion of the trial court.       See
            Pa.R.Crim.P. [720](B)(2)(b).     “It is true that in
            ‘borderline cases’ a hearing should be granted . . . .
            However, this should not lead to the grant of a
            hearing every time a claim is made that a guilty plea
            was improperly induced.”        Commonwealth v.
            Cappelli, 340 Pa.Super. 9, 489 A.2d 813, 819
            (1985) (en banc).

Commonwealth v. Stork, 737 A.2d 789, 791 (Pa.Super. 1999), appeal

denied, 764 A.2d 1068 (Pa. 2000).

      “When considering a petition to withdraw a plea submitted to a trial

court after sentencing, it is well-established that a showing of prejudice on



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the order of manifest injustice is required before withdrawal is properly

justified.” Commonwealth v. Byrne, 833 A.2d 729, 737 (Pa.Super. 2003),

quoting Commonwealth v. Johns, 812 A.2d 1260, 1261 (Pa.Super. 2002)

(emphasis in original).

            The standard for withdrawal of a guilty plea after
            imposition of sentence is much higher [than the
            standard applicable to a presentence motion to
            withdraw]; a showing of prejudice on the order of
            manifest injustice is required before withdrawal is
            properly justified.   A plea rises to the level of
            manifest injustice when it was entered into
            involuntarily, unknowingly, or unintelligently.

Id.,   quoting   Commonwealth      v.   Muhammad,      794   A.2d    378,   383

(Pa.Super. 2002) (citations and internal quotation marks omitted).

            A showing of manifest injustice is required after
            imposition of sentence since, at this stage of the
            proceeding,    permitting     the  liberal standard
            enunciated in [the presentence setting] might
            encourage the entrance of a plea as a “sentence
            testing device.” We note that disappointment by a
            defendant in the sentence actually imposed does not
            represent manifest injustice.

Id. (citations omitted).

       Instantly, we agree with the trial court that appellant’s motion was

meritless on its face and the record indicates his plea was entered into

voluntarily, knowingly, and intelligently. There was no need for a hearing on

the matter, and the trial court did not abuse its discretion in denying

appellant’s motion to withdraw his guilty plea without a hearing. (Trial court

opinion, 9/15/14 at 6-7.)



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      Appellant’s claim in his post-sentence motion that his decision to

forfeit his right to a trial was entered into involuntarily, that he is actually

innocent of the     charges, and that he did not know the potential

consequences of his decision to plead guilty, is belied by the record. (Docket

#10.) Appellant executed a written guilty plea colloquy, with the assistance

of counsel, in which he acknowledged his right to a jury trial. We also note

that immediately prior to entering a plea in this case, appellant had a

non-jury trial on an unrelated case and was found guilty of disorderly

conduct, resisting arrest and criminal mischief.        (Notes of testimony,

3/27/14 at 43.) Clearly, appellant was aware of his right to go to trial.

      In addition, the trial court conducted an oral plea colloquy during

which appellant acknowledged the terms of the plea agreement, stated that

he was satisfied with counsel’s representation, and that he was pleading

guilty because he was, in fact, guilty. (Id. at 37-42.) The Commonwealth

also set forth the factual basis for the plea. (Id. at 39-41.) “A person who

elects to plead guilty is bound by the statements he makes in open court

while under oath and he may not later assert grounds for withdrawing the

plea which contradict the statements he made at his plea colloquy.”

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003), citing

Stork, 737 A.2d at 790-791. To the extent appellant was disappointed with




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the sentence imposed, that is not grounds for withdrawal.2        There is no

manifest injustice here.    The trial court did not abuse its discretion in

denying appellant’s post-sentence motion to withdraw his guilty plea without

a hearing.

      Next, appellant claims that the sentence imposed at count six, false

identification, was illegal as it exceeded the statutory maximum of one year.

“If no statutory authorization exists for a particular sentence, that sentence

is illegal and subject to correction.    An illegal sentence must be vacated.”

Commonwealth v. Melvin, 103 A.3d 1, 52 (Pa.Super. 2014).

      False identification to law enforcement is a third-degree misdemeanor

punishable by up to one year of imprisonment.         18 Pa.C.S.A. § 1104(3).

The length of any probationary term may not exceed the maximum term for

which the defendant could be confined. 42 Pa.C.S.A. § 9754(a). Therefore,

appellant is correct that his sentence of two years’ probation for false

identification is illegal and must be vacated. However, we will not remand

for resentencing where the sentence was run concurrently with his two-year

probationary term at count five, tampering with physical evidence, and the

trial court’s overall sentencing scheme remains intact.      Indeed, the trial

court has stated that remand is unnecessary. (Trial court opinion, 9/15/14


2
  Again, we note that appellant’s sentence was in the mitigated range of the
guidelines. On the other case, appellant received a sentence of two years’
probation for resisting arrest and no further penalty for criminal mischief.
(Notes of testimony, 3/27/14 at 50-51.) The trial court observed that
appellant received a very lenient sentence. (Id. at 52.)


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at 8.) See Melvin, 103 A.3d at 56 (“This Court has the authority to correct

an illegal sentence directly rather than to remand the case for re-sentencing

so long as we do not disrupt the trial court’s sentencing scheme in doing

so.”) (citations omitted).

      Appellant’s sentence at count six, false identification, is hereby

vacated.   Otherwise, the judgment of sentence is affirmed.      Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/24/2015




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