J-S18017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PETER MOBLEY,

                            Appellant                 No. 1348 EDA 2014


        Appeal from the Judgment of Sentence entered June 30, 2008,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No(s): CP-51-CR-1207921-2004


BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED MARCH 23, 2015

        Peter Mobley (“Appellant”) appeals from the judgment of sentence

imposed after he pled guilty to one count of attempted murder.1 We affirm.

        The pertinent facts and procedural history are as follows:          The

Commonwealth charged Appellant at two separate docket numbers after he

fired multiple gunshots at Philadelphia Police Officers James Crown and

Michael Trask.      Each docket charged multiple crimes involving one of the

police officers. At issue in this appeal is the docket involving Officer Crown.

        Appellant proceeded to a jury trial at both docket numbers. On April

11, 2008, the jury convicted Appellant of aggravated assault with respect to

Officer Crown, as well as multiple firearm and weapons violations. The jury
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1
    See 18 Pa.C.S.A. §§ 903 and 2501.
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deadlocked on the other charges, including attempted murder with respect

to both officers and aggravated assault as to Officer Trask.

        On April 28, 2008, rather than face retrial for the attempted murder of

both officers, Appellant entered into an open guilty plea to attempted

murder of Officer Crown and, at a separate docket, to the aggravated

assault of Officer Trask. In exchange, the Commonwealth agreed to dismiss

all remaining charges at both dockets.

        On June 30, 2008, the trial court sentenced Appellant for his guilty

pleas at both dockets.          Relevant to the instant appeal, the trial court

imposed a mitigated range sentence of nine to eighteen years of

incarceration for the attempted murder of Officer Crown.             See N.T.,

6/30/08, at 5.2

        On December 6, 2014, following the grant of post-conviction relief,

Appellant filed a nunc pro tunc post-sentence motion to withdraw his guilty

plea.    Within this motion, Appellant claimed that his guilty plea was not

knowing and voluntary solely because plea counsel “contacted [Appellant]

and promised him that he could guarantee a sentence of no more than 7½
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2
  As to the other convictions from Appellant’s earlier jury trial at this docket,
the trial court imposed concurrent sentences, except for a two and one-half
to five year consecutive sentence for a firearm violation. See N.T., 6/30/08,
at 6-8. In addition, with regard to the aggravated assault of Officer Trask,
the trial court imposed a consecutive six to twelve year sentence. Thus,
Appellant’s aggregate sentence from both dockets is seventeen and one-half
to thirty-five years of imprisonment.




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to 15 years, concurrent with any other sentences if he pled open[.]” Post-

Sentence Motion, 12/6/13, at ¶ 6.        On February 28, 2014, the trial court

denied Appellant’s motion. This timely appeal followed. Both Appellant and

the trial court have complied with Pa.R.A.P. 1925.

      Appellant raises a single issue:

          I. Whether the trial court erred by denying [Appellant] the
          right to withdraw his guilty plea because the guilty plea
          was not knowing and voluntary.

Appellant’s Brief at 2.   In support of this claim, Appellant asserts that he

“was not advised of the correct sentencing guidelines at the time of the plea”

and that he “was not advised that the sentences could be imposed

consecutively.” Id. at 9.

      Before considering the merits of Appellant’s claim, we must first

determine whether it is properly before us.        Appellant did not raise the

above arguments as grounds to withdraw his guilty plea in his post-sentence

motion.    Rather, Appellant first raised his claim in his Pa.R.A.P. 1925(b)

statement. Thus, the claim is being raised inappropriately for the first time

on appeal.    See Pa.R.A.P. 302(a); Commonwealth v. Sanchez. 36 A.3d

24, 42-43 (Pa. 2011) (explaining that an issue raised for the first time in a

Pa.R.A.P. 1925(b) statement generally results in waiver).

      Even if Appellant had properly preserved his claim, he would not be

entitled to relief.   “[A] defendant who attempts to withdraw a guilty plea

after sentencing must demonstrate prejudice on the order of manifest



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injustice before withdrawal is justified.” Commonwealth v. Pantalion, 957

A.2d 1267, 1271 (Pa. Super. 2008) (citation omitted).             A showing of

manifest injustice may be established if the plea was entered into

involuntarily, unknowingly, or unintelligently. Id.

      As this Court has summarized:

              Pennsylvania has constructed its guilty plea procedures
           in a way designed to guarantee assurance that guilty
           pleas are voluntarily and understandingly tendered. The
           entry of a guilty plea is a protracted and comprehensive
           proceeding wherein the court is obliged to make a specific
           determination after extensive colloquy on the record that
           a plea is voluntarily and understandingly tendered.


Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993)

(citation omitted).

      Rule 590 of the Pennsylvania Rules of Criminal Procedure requires that

a guilty plea be offered in open court, and provides a procedure to

determine whether the plea is voluntarily, knowingly, and intelligently

entered.   As noted in the Comment to Rule 590, at a minimum, the trial

court should ask questions to elicit the following information:


                   (1)   Does the defendant understand the nature
                         of the charges to which he or she is
                         pleading guilty or nolo contendere?
                   (2)   Is there a factual basis for the plea?
                   (3)   Does the defendant understand that he or
                         she has the right to trial by jury?
                   (4)   Does the defendant understand that he or
                         she is presumed innocent until found
                         guilty?




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                     (5)    Is the defendant aware of the permissible
                            range of sentences and/or fines for the
                            offenses charged?
                     (6)    Is the defendant aware that the judge is
                            not bound by the terms of any plea
                            agreement tendered unless the judge
                            accepts such agreement?
Pa.R.Crim.P. 590, Comment.3

       This Court has further summarized:

           In 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. Thus, even though there is an
           omission or defect in the guilty plea colloquy, 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.


Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)

(quoting Fluharty, 632 A.2d at 314-15)).

       Finally, when addressing an appellate challenge to the validity of a

guilty plea:


       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.


____________________________________________


3
 The Comment to Rule 590 includes a seventh proposed question that is
only applicable when a defendant pleads guilty to murder generally.




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                             *       *       *

            The longstanding rule of Pennsylvania law is that a
        defendant may not challenge his guilty plea by asserting
        that he lied while under oath, even if he avers that counsel
        induced the lies. A person who elects to plead guilty is
        bound by the statements he makes in open court while
        under oath and may not later assert grounds for
        withdrawing the plea which contradict the statements he
        made at his plea colloquy.

                             *       *       *

        [A] 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. Yeomans, 24 A.3d at 1047 (quoting Commonwealth

v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)).

      In rejecting Appellant’s initial claim regarding the validity of his plea,

the trial court explained:

             In the instant case, based on the totality of the
         circumstances, [Appellant’s] plea was entered into
         knowingly, intelligently and voluntarily. Before [Appellant]
         pled guilty, the Commonwealth stated that [Appellant’s]
         prior record score was four; at sentencing, the
         Commonwealth stated that the pre-sentence report
         indicated that [Appellant’s] prior record score was a five.
         (N.T. 4/28/08, at 4-5; N.T. 6/27/08 at 5-7). At the time
         of sentencing, however, [Appellant] not only was present
         when the updated prior record score was announced, but
         defense counsel stated on the record that, “Your Honor, we
         received the presentence report and prior record score.
         I’ve reviewed that with [Appellant], and we’re ready to go
         forward today.” (N.T. 6/27/08 at 9). Thus, [Appellant]
         was properly advised of his actual prior record score and
         sentencing guidelines before imposition of sentence. Had
         [Appellant] desired to withdraw his guilty plea before

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         sentencing, he could have easily made a motion to do so
         then.     Instead, he elected to move forward.            As
         [Appellant’s] correct prior record score was used to arrive
         at [his] sentence, his claim that his guilty plea was invalid
         is without merit.

            Furthermore, [Appellant] entered his guilty plea
         voluntarily, knowingly and intelligently.       This Court
         engaged in an extensive colloquy of [Appellant]. (N.T.
         4/28/08, at 21).       [Appellant] signed two guilty plea
         colloquy forms acknowledging his guilt for the Aggravated
         Assault of Officer Trask, as well as [the] Attempted Murder
         of Officer Crown. The forms advised [Appellant] of the
         plea agreement terms and the rights that he would forgo
         by entering the plea, including that he was presumed
         innocent until proven guilty, that he had a right to a trial
         by judge or jury and that he was entitled to a defense.
         The form also informed [Appellant] that he was aware that
         the judge is not bound by the terms of any plea
         agreement. Moreover, [Appellant] acknowledged that, by
         signing the form, he was not threatened or forced to plea,
         he was satisfied with his [legal] representation, and the
         facts and elements of the crime would be read to him.

            In addition to the forms, this Court conducted an oral
         colloquy during which the Commonwealth stated the terms
         of [Appellant’s] open plea agreement, and [Appellant]
         agreed to those terms. (Id. at 3-4). This Court then
         confirmed that [Appellant] willingly and competently
         signed the guilty plea form or forms and informed
         [Appellant] of his limited appeal rights. (Id. at 8-14). In
         doing so, this Court confirmed that [Appellant] did not
         receive any promises other than those contained in the
         plea agreement. (Id. at 13). The Commonwealth read a
         summary of the . . . facts and circumstances surrounding
         the incident, and [Appellant] acknowledged that he
         understood those facts and offered no corrections or
         modifications. (Id. at 18-20).

Trial Court Opinion, 6/30/14, at 5-7 (citation omitted).

      Our review of the certified record supports the trial court’s conclusions.

Thus, Appellant’s first basis for invalidating his guilty plea fails.


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       Appellant also claims that his guilty plea is invalid because “before he

pled guilty, [he] was not told by the court, the Commonwealth or his counsel

about the potential maximum penalty by virtue of possible consecutive

sentences.” Appellant’s Brief at 9.

       Our review of the record refutes Appellant’s claim.    In the docket at

issue in this appeal, Appellant’s guilty plea involved only a single count of

the attempted murder of Officer Crown.           Appellant was informed of the

maximum possible sentence he could receive for such a conviction.         See

Written Plea Colloquy, 4/28/08. Appellant’s reliance upon this Court’s recent

decision in Commonwealth v. Diehl, 61 A.3d 265 (Pa. Super. 2013), is

inapt. Unlike the facts in this case, Diehl involved sentencing on multiple

counts to which the defendant pled guilty at the same docket number. See

id. at 266. Here, Appellant’s true complaint is that he was not informed that

his sentence for the attempted murder of Officer Crown could be imposed

consecutive to the other charges at the same docket for which a jury

convicted him earlier, as well as his aggravated assault plea involving Officer

Trask at the other docket. Appellant cites no authority to support his claim.4

As stated by the Commonwealth, “The law does not require that [Appellant]


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4
   For this reason, we cannot agree with the trial court’s request that we
remand so that it could vacate Appellant’s consecutive sentence for his
firearm violation at this docket. See Trial Court Opinion, 6/30/14, at 8. As
cited infra, the provisions of Pa.R.Crim.P. 590 include no such requirement.




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be notified of all hypothetical aggregate sentences that could result when

the sentence to which he is pleading guilty is run consecutively to other

convictions outside the plea deal.” Commonwealth Brief at 15.

      Finally, “as the law makes clear, a trial court may consider a wide

array of relevant evidence [under the totality of the circumstances test] in

order to determine the validity of a claim and plea agreement including, but

not   limited   to,   transcripts   from    other     proceedings,   off-the-record

communications        with   counsel,      and      written   plea   agreements.”

Commonwealth v. Allen, 732 A.2d 582, 589 (Pa. 1999). Here, the trial

court referenced comments made by Appellant’s plea counsel at sentencing.

It explained:

            [I]t is clear that [Appellant] was aware of [the
         possibility of consecutive sentences] before sentence was
         imposed. At the time of sentencing, when asking this
         Court to impose a mitigated sentence, defense counsel
         said, “I’m asking the Court to sentence [Appellant] to a
         period of incarceration in the mitigated range…I’m not
         asking for five to ten, Your Honor. I’m asking for the
         totality of the sentence, and how Your Honor wishes to
         structure that per charge, to the totality of the sentence
         being [in the] mitigated range of 102 months to 204
         months...”      (N.T. 6/27/08 at 24).      Based on that
         statement, defense counsel clearly knew that the sentence
         could run consecutively, as defense counsel asked the
         judge to structure the sentence per charge in order to
         arrive at an aggregate sentence of eight and a half (8.5) to
         seventeen (17) years and counsel by this recommendation
         clearly understood that the Court could impose a sentence
         in excess of twenty (20) years.        Otherwise, defense
         counsel would have been asking for a sentence close to the
         maximum. As defense counsel conferred with [Appellant]
         before sentencing, [Appellant] was likely advised that he
         could receive consecutive sentences exceeding twenty

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         years. Thus, [Appellant] could have easily withdrawn his
         guilty plea before the imposition of sentence.

Trial Court Opinion, 6/30/14, at 7-8.

      In sum, because Appellant’s claims regarding his guilty plea are

waived and otherwise without merit, we affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2015




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