J-S23023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

KALEE HILL,

                             Appellant               No. 1396 EDA 2014


          Appeal from the Judgment of Sentence Entered April 22, 2014
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0007848-2011, CP-51-CR-0007855-
                                      2011


BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 27, 2015

        Appellant, Kalee Hill, appeals from the judgment of sentence entered

on April 22, 2014. We affirm.

        A prior panel of this Court set forth the relevant facts and procedural

history of this case:

              This matter arises following Appellant’s entry of an open
        guilty plea on August 24, 2011, to [three counts of aggravated
        assault and to one count of persons not to possess firearms.]
        [O]n June 12, 2011[,] at approximately 9:45 p.m., Appellant
        was standing near a busy intersection in Philadelphia during
        which time a car circled the block prior to slowing down in front
        of him. N.T., 10/26/11, at 18. Appellant took out a gun and
        opened fire at the vehicle. Id. Mr. Raymond Erwin, who was
        speaking with a friend nearby, was struck by a stray bullet fired
        from Appellant’s gun as was Ms. Mimine Hein, a young woman
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*
    Retired Senior Judge assigned to the Superior Court.
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       who was nine months pregnant and in the vicinity to pick up her
       husband and daughter.        Id. at 10.     The Commonwealth
       acknowledged that the shooting of Mr. Erwin and Ms. Hein was
       unintentional, though it also stressed that this did not mitigate
       the crimes he had committed. Id. at 20–21.

              Mr. Erwin testified that as a result of the injuries he
       sustained in the shooting, he had a gastronomy tube implanted
       for one year, had undergone three surgeries prior to the date of
       sentencing, and had a fourth surgery scheduled for
       November 15, 2011. [N.T., 10/26/11,] at 7. Ms. Heim testified
       that she had been shot in her left arm which rendered her
       unable to lift it. As a result, she is no longer able to work in the
       field of hair braiding. Id. at 11.

              A sentencing hearing was held on October 26, 2011, after
       which the sentencing court imposed consecutive sentences of
       ten (10) years to twenty (20) years in prison for each of the
       Aggravated Assault counts followed by a consecutive sentence of
       five (5) years to ten (10) years in prison on the firearms charge.
       [Appellant also received a consecutive term of four (4) years to
       eight (8) years in prison for a probation violation (VOP).]. The
       VOP sentence [was] for a prior Possession with Intent to Deliver
       conviction. . . .

Commonwealth v. Hill, 66 A.3d 359, 360-361 (Pa. Super. 2013) (“Hill

1”).

       In that earlier appeal, this Court was unable to discern whether the

trial court illegally sentenced Appellant for a probation violation. Hill 1, 66

A.3d at 363.       Accordingly, we remanded the case to the trial court to

determine if Appellant was on probation at the time of his sentencing on

October 26, 2011, and if necessary, hold a proper Gagnon1 hearing and

resentence Appellant. Hill 1, 66 A.3d at 363.
____________________________________________


1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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      In    a   separate   but   related   appeal,   Appellant   challenged   the

discretionary aspects of his sentence with respect to the aggregated thirty-

five-to-seventy-year sentence imposed for his convictions of aggravated

assault and the firearm violation. Commonwealth v. Hill, 66 A.3d 365 (Pa.

Super. 2013) (“Hill 2”). In Hill 2, this Court noted:

      We are further troubled by the fact that the sentencing court
      maintains in its Opinion filed pursuant to Pa.R.A.P. 1925(a) that
      while Appellant’s sentence is within the statutory maximum, it
      also is “well within the Sentencing Guideline recommendations.”
      Trial Court Opinion, filed 8/1/12, at 3–4 (unnumbered). In
      reaching this conclusion, the sentencing court misinterprets the
      numbers in the Sentencing Guidelines therein as representing
      prison time in terms of years rather than months. Specifically,
      the sentencing court reasons as follows:

           Here, Appellant has a prior record score of four and
           Aggravated Assault has an offense gravity score of ten.
           See 18 Pa.C.S.A. § 2702. Therefore, the guidelines call
           for forty-eight to sixty years’ incarceration, and this court
           sentenced Appellant to thirty to sixty years’ imprisonment.
           Possession of Firearm Prohibited has an offense gravity
           score of ten. See 18 Pa.C.S.A. § 6105. Therefore, the
           guidelines call for forty-eight to sixty years’ incarceration,
           and this court sentenced Appellant to five to ten years.

Hill 2, 66 A.3d at 372-373.        This Court was unable to determine if the

sentencing court understood the applicable standard and/or aggravated

ranges of the Sentencing Guidelines.          Id. at 373.     Thus, we vacated

Appellant’s sentence and remanded for resentencing. Id.

      Following our decisions in Hill 1 and Hill 2, which were filed on April

10, 2013, Appellant filed a motion to withdraw his guilty plea on July 18,

2013. Appellant claimed that because this Court vacated the earlier



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judgments of sentence, he was actually filing a presentence motion to

withdraw. Following a hearing on April 2, 2014, the trial court scheduled a

hearing for April 22, 2014, to address the remand orders from this Court and

Appellant’s motion to withdraw his guilty plea. N.T., 4/2/14, at 4-5; 13-14.

At the hearing, the trial court determined that Appellant was not on

probation at the time of the original sentence and vacated the four-to-eight-

year violation-of-probation sentence.       N.T., 4/22/14, at 11-12.           The trial

court then denied Appellant’s motion to withdraw his guilty plea and

resentenced Appellant.      Id. at 11.    The court imposed three, consecutive,

ten-to-twenty year sentences for the aggravated assault convictions and a

consecutive five-to-ten year sentence for the firearm violation, resulting in

an aggregate sentence of thirty-five to seventy years. Id. at 14.

      On May 1, 2014, Appellant filed a timely notice of appeal to this Court.

On May 27, 2014, the trial court directed Appellant to file a statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 6,

2014, Appellant timely complied and filed his Pa.R.A.P. 1925(b) statement,

and the trial court filed its Pa.R.A.P. 1925(a) opinion on July 2, 2014.

      In   this   appeal,   Appellant    presents   one   issue   for   this    Court’s

consideration:

      Whether the lower court abused its discretion in denying
      Appellant’s pre-sentence motion to withdraw [his] guilty plea?

Appellant’s Brief at 4.




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      The Pennsylvania Rules of Criminal Procedure provide that “[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).    “There is no absolute right to withdraw a

guilty plea.”   Commonwealth v. Walker, 26 A.3d 525, 529 (Pa. Super.

2011) (citations omitted).        “Nevertheless, prior to the imposition of

sentence, a defendant should be permitted to withdraw his plea for any fair

and just reason, provided there is no substantial prejudice to the

Commonwealth.”       Id. (internal quotation marks and citations omitted)

(emphasis added).    Conversely, when a defendant attempts to withdraw a

guilty plea after sentencing, he must demonstrate prejudice on the order of

manifest injustice before withdrawal is justified.       Commonwealth v.

Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008) (emphasis added).

Manifest injustice may be established if the plea was entered into

involuntarily, unknowingly, or unintelligently. Id.

      Here, Appellant claims that the liberal pre-sentencing standard of “any

fair and just reason” should apply to his request to withdraw his guilty plea

as opposed to the post-sentence manifest-injustice standard.       Appellant’s

Brief at 9. We disagree.

      In Commonwealth v. Muntz, 630 A.2d 51 (Pa. Super. 1993), a case

with a similar procedural history, the appellant pled guilty to seven counts of

robbery and two counts of simple assault. Id. at 52. The appellant did not

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seek to withdraw his guilty plea prior to sentencing.     Id. at 54.   The trial

court sentenced the appellant to an aggregate term of eight to sixteen years

in prison.   Id. at 52.   The appellant filed an appeal challenging his prior

record score, and a panel of this Court vacated the appellant’s sentence and

remanded for re-sentencing.       Id. at 52.     Prior to re-sentencing, the

appellant moved to withdraw his guilty plea. Id. The trial court denied the

appellant’s motion to withdraw his guilty plea and resentenced him.         Id.

The appellant then filed an appeal to this Court and claimed that his motion

to withdraw his guilty plea should have been considered a pre-sentence

motion due to the original sentence being vacated and the case remanded.

Id. at 53. In response to that claim, which mirrors the argument asserted

by Appellant in the case at bar, this Court stated as follows:

      [H]ere, appellant petitioned to withdraw his guilty plea only after
      sentence had been imposed for the first time. Even though
      appellant made his request before his resentencing, this does
      not negate the fact that appellant failed to request allowance to
      withdraw his plea before his original sentencing. Therefore,
      appellant’s request falls under the scrutiny of post-sentencing
      standard of “manifest injustice” rather than the pre-sentencing
      standard of “fair and just reason.”

Id. at 54.   We further explained, “the post-sentencing standard applies in

the instant case because the vacating of sentence by this Court does not

magically transform appellant’s post-sentence request to withdraw his guilty

plea into a pre-sentence request.” Id. at 54 n.6.

      In the instant case, Appellant did not seek to withdraw his guilty plea

prior to the imposition of his initial sentence. Just as in Muntz, Appellant


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opted to proceed to sentencing, and following the imposition of the initial

sentence, he filed an appeal that resulted in this Court vacating the original

sentence and directing a remand for resentencing.         Thus, pursuant to the

holding in Muntz, we conclude Appellant’s request to withdraw his guilty

plea was filed post-sentence.2

       As noted above, when a defendant seeks to withdraw his guilty plea

after sentencing, he must demonstrate prejudice on the order of manifest

injustice before withdrawal is justified.        Pantalion, 957 A.2d at 1271.

Manifest injustice may be established if the plea was entered into

involuntarily, unknowingly, or unintelligently. Id.

       Appellant’s entire argument is focused on his assertion that the “fair

and just” standard for withdrawing a guilty plea pre-sentence should apply.

However, we have already concluded that Appellant’s motion to withdraw his

guilty plea was filed post-sentence, and therefore, the manifest injustice

standard applies. As such, Appellant was required to establish that the trial

court’s denial of his motion amounted to a manifest injustice, but Appellant

has failed to even allege manifest injustice.       Moreover, as the trial court

pointed out, Appellant has made no claim that his plea was involuntary or


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2
  Appellant disagrees with the holding in Muntz and claims that “the logic of
the Superior Court in Muntz, is wanting.” Appellant’s Brief at 10. Despite
Appellant’s protestations, we, as a three-judge panel, may not overrule a
prior decision of this Court, and we are bound by Muntz. Commonwealth
v. Rabold, 920 A.2d 857, 861 (Pa. Super. 2007).



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unknowingly entered.      Trial Court Opinion, 7/2/14, at 3.     “Reviewing

[Appellant’s] claim under the standard of ‘manifest injustice’ this [c]ourt

finds no reason to grant [Appellant’s] post-sentencing request to withdraw

his guilty plea.” Id.

      We agree with the trial court. Because Appellant has failed to allege,

much less prove, manifest injustice, we discern no error or abuse of

discretion in the trial court’s denial of Appellant’s motion to withdraw his

guilty plea. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2015




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