J-S31045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ALLEN J. FIDDESOP

                         Appellant                   No. 1980 MDA 2014


   Appeal from the Judgment of Sentence entered on November 6, 2014
             In the Court of Common Pleas of Franklin County
             Criminal Division at No: CP-28-CR-0000525-2013


BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                              FILED JUNE 12, 2015

      Allen J. Fiddesop (“Appellant”) appeals his November 6, 2014

judgment of sentence, which was imposed upon his guilty plea to a charge

of corruption of minors, 18 Pa.C.S. § 6301(a)(1)(ii).      In his sole issue,

Appellant contends that the trial court applied the incorrect standard to his

petition to withdraw his guilty plea, and, in so doing, erroneously denied that

motion. We find that the trial court did not so err. Consequently, we affirm.

      The trial court has provided the following brief procedural history of

this case:

      On February 14, 2014, [Appellant] entered a guilty plea to
      Corruption of Minors. Under the plea agreement, [Appellant]
      was to serve 11.5 months to 23 months in Franklin County Jail
      followed by 24 months of probation. The Statutory Sexual
      Assault charge[, see 18 Pa.C.S. § 3122.1(a)(1),] was to be
      dismissed.    Sentencing was deferred in order to allow for
      evaluation by the Sexual Offenders Assessment Board [“SOAB”].
      [Appellant], however, in his July 16, 2014 Motion to Withdraw
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      Guilty Plea, sought to withdraw his February 14, 2014 guilty plea
      as he claims innocence in this matter. The Commonwealth filed
      an Answer in opposition on July 30, 2014, arguing that the
      “manifest injustice” standard applied as the plea in question was
      a negotiated plea.      A hearing on the issue was held on
      September 5, 2014 . . . .

Trial Court Opinion, 1/12/2015, at 3.         On September 16, 2014, the trial

court entered an order denying Appellant’s motion to withdraw his guilty

plea. On November 6, 2014, the trial court entered the sentence specified in

Appellant’s negotiated guilty plea—to wit, eleven and one half to twenty-

three months’ incarceration in the Franklin County Jail to be followed by

twenty-four months’ probation. On November 12, 2014, after reviewing the

SOAB recommendation and conducting a hearing, the trial court designated

Appellant a sexually violent predator.

      On November 21, 2014, Appellant timely filed his notice of appeal. On

December 4, 2014, the trial court entered an order directing Appellant to file

a concise statement of the errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). On December 18, 2014, Appellant timely complied. On

January 12, 2015, the trial court filed its opinion pursuant to Rule 1925(a).

This case is now ripe for our review.

      Appellant presents the following issue:        “Whether the [trial] court

erred by not allowing [Appellant] to withdraw his guilty plea when[,] prior to

sentencing[, Appellant moved] to withdraw his plea and asserted his

innocence?” Brief for Appellant at 7. Our review of this issue is governed by

the following standard:


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     “At 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); Commonwealth v. Santos, 301 A.2d
     829, 830 (Pa. 1973). “Although there is no absolute right to
     withdraw a guilty plea, properly received by the trial court, it is
     clear that a request made [b]efore sentencing . . . should be
     liberally allowed.” Commonwealth v. Forbes, 299 A.2d 268,
     271 (Pa. 1973). “Thus, in 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.” Id. at 271.
     “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.   As a
     general rule, “the mere articulation of innocence [is] a fair and
     just reason for the pre-sentence withdrawal of a guilty plea[,]
     unless the Commonwealth has demonstrated that it would be
     substantially prejudiced.”       Commonwealth v. Katonka,
     33 A.3d 44, 46 (Pa. Super. 2011) (en banc).

     In contrast, after the court has imposed a sentence, a defendant
     can withdraw his guilty plea “only where necessary to correct a
     manifest injustice.” Commonwealth v. Starr, 301 A.2d 592,
     595 (Pa. 1973). “[P]ost-sentence motions for withdrawal are
     subject to higher scrutiny[,] since courts strive to discourage the
     entry   of guilty      pleas as     sentencing-testing     devices.”
     Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa. Super. 2010).
     If the appellant knows the only possible sentence he can get for
     the crime to which he pled guilty, then any pre-sentence motion
     to withdraw the plea is akin to a post-sentence motion to
     withdraw the plea, and the “manifest injustice” standard will
     apply to the pre-sentence motion. Commonwealth v. Lesko,
     467 A.2d 307, 310 (Pa. 1983).

     To be valid, a guilty plea must be knowingly, voluntarily and
     intelligently entered. Commonwealth v. Pollard, 832 A.2d
     517, 522 (Pa. Super. 2003). “[A] manifest injustice occurs when
     a plea is not tendered knowingly, intelligently, voluntarily, and
     understandingly.” Commonwealth v. Gunter, 771 A.2d 767,
     771 (Pa. 2001).




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Commonwealth v. Prendes, 97 A.3d 337, 351-52 (Pa. Super. 2014)

(citations modified; some internal quotation marks omitted).

      We need only consider the propriety of the trial court’s application of

the manifest injustice standard proposed by the Commonwealth rather than

the fair and just standard that Appellant asked the court to apply. In effect,

Appellant’s entire argument rests on that question; he makes no material

argument that the trial court erred in its application of the manifest injustice

standard to the facts and circumstances of this case. Put simply, Appellant

does not effectively dispute that, if the trial court applied the proper

standard, it reached the correct result.     Thus, the discussion that follows

addresses solely the question of which of the two standards cited above

should have applied in the instant matter.

      We find that this case is controlled by Prendes. In that case, which

also involved alleged sex offenses, Prendes elected first to proceed to trial.

After both parties presented their cases, the jury conducted its deliberations.

However, the jury ultimately reported to the court that it was deadlocked.

The court read the jury Pennsylvania Standard Jury Instruction 2.09,

Deliberations and Verdict: Deadlocked Jury, and directed the jury to resume

deliberations. After doing so, the jury reported that, while it had reached a

verdict as to some charges, it had failed to do so as to other charges. The

trial court informed counsel that it was prepared to summon the jury and

accept a partial verdict. See 97 A.3d at 343-44.




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     Prendes and his attorney requested and were granted a continuance,

following which the parties informed the court that they had agreed to a

negotiated sentence. Prendes would plead guilty to three counts in return

for a sentence of thirty to sixty months’ incarceration followed by thirty-six

months’ probation.       The court accepted both the plea agreement and the

agreed-upon sentence. Thereafter, Prendes completed a written guilty plea

statement    with   an    addendum    concerning      the   registration   of    sexual

offenders.   The court also conducted an oral colloquy in open court that

undisputedly   satisfied    the   requirements   of    Pa.R.Crim.P. 590     and     the

comment thereto, which, inter alia, require the trial court to inquire of the

defendant whether he is “aware of the permissible range of sentences

and/or fines for the offense charged.”       In connection with both, Prendes

undisputedly acknowledged that he was aware of his rights and alternatives,

and averred that he entered the plea knowingly and voluntarily.             The trial

court accepted the plea agreement and deferred sentencing pending a

review by the SOAB. Id. at 344-45.

     The above plea was entered on or about September 17, 2012. Nearly

three months later, on December 13, 2012, Prendes filed a motion to

withdraw his guilty plea, wherein he asserted that he was factually innocent

of all charges.      On December 21, 2012, after conducting a hearing

concerning Prendes’ motion, the trial court denied the motion.                  Prendes

challenged the trial court’s denial of his motion to withdraw his plea on

appeal. Id. at 345, 351.

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      The Prendes Court began by setting forth the above-quoted legal

standards   respectively   governing    pre-sentencing    and   post-sentencing

motions to withdraw a guilty plea.      Elaborating upon the reason for the

disparate treatment of motions to withdraw pre- and post-sentencing, this

Court explained as follows:

      Substantial prejudice [to the Commonwealth] exists if a
      defendant obtains “a full preview of the Commonwealth’s
      evidence     before   deciding   upon    [his]  trial  strategy.”
      Commonwealth v. Morales, 305 A.2d 11, 13 (Pa. 1973).
      Withdrawal of the plea also “might be a means of obtaining an
      entirely new jury for a defendant anytime he feels that the jury
      originally selected is not favorably disposed to his cause . . . .”
      Id. Substantial prejudice also exists if a defendant “now has a
      script of the testimony of the principal Commonwealth
      witness . . . .” Commonwealth v. Ammon, 418 A.2d 744, 788
      (Pa. Super. 1980).

Prendes, 97 A.3d at 353 (citations modified).

      Turning to the facts presented in that case, this Court reasoned as

follows:

      [Prendes’] plea agreement included a negotiated sentence.
      Because [Prendes] was fully aware of the sentence he would
      receive, the “manifest injustice” standard applied.       Further,
      [Prendes] failed to show that his guilty plea was not knowing,
      intelligent or voluntary. Here, the trial court also advised
      [Prendes] at the guilty plea colloquy that he had the right to
      withdraw his plea before sentencing. The court also made clear
      to [Prendes] that any motions to withdraw his plea might be
      denied. . . . Therefore, we see no error in the court’s application
      of the “manifest injustice” standard to [Prendes’] pre-sentence
      motion to withdraw his guilty plea.

Prendes, 97 A.3d at 354-55 (citations omitted).          The Court went on to

apply that standard, observing first that Prendes would not prevail even

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under the fair and just test. It found that no manifest injustice had occurred

and concluded that the trial court did not err or abuse its discretion in its

denial of Prendes’ motion to withdraw his guilty plea. Id.

      The trial court in the case sub judice found Prendes controlling:

      In the seemingly distinguishable case, the Prendes Court noted
      that Prendes plead[ed] guilty to a negotiated sentence, which
      the trial court accepted. Therefore, Prendes was fully aware of
      the sentence he would receive, and the manifest injustice
      standard should apply.

                                   ****

      [S]ince [Appellant] entered into a negotiated plea agreement
      and was aware of the only possible sentence he would receive,
      this Court will apply the manifest injustice standard. Here, the
      Commonwealth and [Appellant] both correctly assert that
      [Appellant] entered into a negotiated plea agreement. Similar to
      the plea agreements in Lesko[, supra,] and Prendes, the plea
      agreement here fully pre-advised [Appellant] of his only possible
      sentence. As outlined in his plea colloquy, [Appellant] agreed to
      plead guilty to Corruption of Minors in exchange for a sentence
      of 11.5 to 23 months in Franklin County Jail plus a consecutive
      two[-]year term of probation. In addition, the plea colloquy that
      was filled out and signed by [Appellant] makes clear that his
      plea was knowing, voluntary, and intelligent. As such, his claim
      of innocence is largely irrelevant under the manifest injustice
      standard, even though it may be highly relevant under the fair
      and just standard. Here, like [in] Lesko, sentencing is therefore
      a “mere formality.”

      Indeed, [Appellant] in his Motion to Withdraw Guilty Plea, does
      not allege that his plea was unknowing, involuntary, and/or
      unintelligent. In [Appellant’s] written motion, the only basis
      mentioned for the withdrawal of his guilty plea is that he is
      innocent of the charge he plead[ed] guilty to. At the September
      5, 2014 [guilty plea] hearing, [Appellant] also asserted that he
      was taking prescribed medication and was intimidated by police
      during pre-trial events.      However, in his plea colloquy,
      [Appellant] stated that he understood the rights he was waiving,
      the nature of the charges to which he was pleading guilty . . .,


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       the maximum penalties that could be imposed on him and that
       he was satisfied that his plea was voluntary. In addition, if
       [Appellant] took medication near the time of his guilty plea,
       there are no signs that his medication influenced his ability to
       make a knowing, voluntary, and intelligent plea.[1]

                                         ****

       Therefore, [the trial court] finds that [Appellant] was pre-
       advised of the only possible sentence he would receive under his
       negotiated plea agreement and no manifest injustice is
       evidenced.

T.C.O. at 7-8 (citations and internal quotation marks omitted).

       As noted, Appellant raises no argument that the trial court erred in the

way it applied the manifest injustice standard, but disagrees solely with the

trial court’s decision to apply that standard rather than the alternative fair

and just standard.       Consequently, any intended argument regarding how

the trial court applied the manifest injustice standard in this case is waived.

See Commonwealth v. Paddy, 15 A.3d 431, 458 (Pa. 2011) (deeming

issue of ineffectiveness of counsel waived because appellant “failed to

develop any argument” on that issue). We consider only the propriety of the

trial court’s election to apply the manifest injustice standard in the first

instance.

       Appellant’s argument focuses upon distinguishing his case from the

facts and circumstances in Lesko and Prendes. However, because we find

____________________________________________


1
      Notably, in Appellant’s written colloquy, he answered no to the
question “Are you under the influence of drugs or alcohol at the present
time?” Guilty Plea Colloquy at 5.



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that Prendes is more on-point than Lesko, we focus upon Prendes.

Appellant highlights the fact that the plea at issue in Prendes followed the

presentation of all evidence and the commencement of jury deliberations.

Appellant argues that the Prendes decision hinged upon the fact that, by

the time Prendes sought to withdraw his plea, the Commonwealth had

“shown its hand,” and that plea withdrawal “amounted to jury[-]fishing

because [Prendes] saw the reactions and [the] evidence against him.” Brief

for Appellant at 11. Appellant also notes the Prendes Court’s reliance upon

the fact that, because the trial court accepted the negotiated plea, Prendes

“was fully aware of the sentence he would receive.” Id. In sum, Appellant

contends that Prendes is distinguishable because the instant case lacks any

evidence of “jury-fishing” or seeking to benefit from having previewed the

Commonwealth’s entire case.2            Appellant concludes by arguing that the
____________________________________________


2
       For example, Appellant argues that Prendes was “narrowly tailored
given the facts,” Brief for Appellant at 11, apparently in reliance upon the
following comment: “At the hearing [on Prendes’ plea withdrawal motion],
the Commonwealth vigorously asserted [that] it would be substantially
prejudiced by the withdrawal of the guilty plea under the specific
circumstances of [that] case . . . .” Prendes, 97 A.3d at 354. Insofar as
this comment a) was ascribed to the Commonwealth, not a statement of this
Court, and b) was related to our application of the manifest injustice
standard, not in connection with our threshold determination that the
standard should apply, it has no bearing on whether this case is sufficiently
similar to Prendes that the trial court did not err in applying the manifest
injustice standard.
       Appellant also asserts that Prendes “is specifically distinguished” by
Katonka, supra. Brief for Appellant at 11. Aside from the fact that
Katonka preceded our decision in Prendes by several years, and thus could
not have “specifically distinguished” that case, Katonka did not address the
(Footnote Continued Next Page)


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Commonwealth did not establish that it was substantially prejudiced, an

inquiry that, while relevant to the manifest injustice standard,3 focuses upon

the   effect   upon      the   Commonwealth         rather   than   the   more   critical

determination as to whether the plea was entered knowingly, voluntarily,

and intelligently.

      Allowing for the considerable difference between the procedural

circumstances in Prendes and those in the instant case, we conclude that

those circumstances bear far more directly on the results of the manifest

injustice inquiry, not whether that test is appropriately applied when a

negotiated plea is entered pursuant to which the pleading defendant knows
                       _______________________
(Footnote Continued)

question presented regarding which standard should apply. In Katonka, the
case involved a negotiated plea in which the Commonwealth agreed to
recommend a specified sentence. It is true that this Court reviewed the trial
court’s refusal to allow the defendant to withdraw his guilty plea under the
fair and just test. However, it did not do so in the face of a dispute as to its
application. Moreover, the critical issue in that case, indeed the only one
squarely addressed, considered the trial court’s credibility determination
regarding the defendant’s assertion of innocence, which is an essential
element under the fair and just test, but less important to the manifest
injustice test. Appellant appears to appreciate the distinction insofar as he
suggests that the trial court committed the same error of refusing to credit a
clear assertion of innocence. However, this argument is relevant only to the
extent that we agree that the fair and just test was appropriate under these
circumstances, and we do not. Because Katonka did not consider which
test should apply under the circumstances of that test, it is not precedential
on that point.
3
      See Prendes, 97 A.3d at 353 (“When . . . a defendant attempts to
withdraw a guilty plea entered after presentation of the Commonwealth’s
case-in-chief, prejudice to the Commonwealth although difficult to prove,
may be a very real possibility.” (internal quotation marks and modifications
omitted)).



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the precise contours of the only sentence he can receive.            Lesko and

Prendes both stand for the general proposition that, when a defendant

enters a guilty plea with full knowledge of the only sentence he can receive

for the charges in question, then his motion to withdraw must be treated as

a   post-sentencing   motion     rather    than    a     pre-sentencing   motion.

Consequently, the manifest injustice standard must apply.

      With this principle in mind, we must note that the certified record does

not contain a transcript of the guilty plea hearing in the instant case.

However, Appellant does not rely upon or even allude to those proceedings.

Moreover, perfecting the certified record is Appellant’s responsibility.

Hrinkevich    v.   Hrinkevich,    676     A.2d    237,   240   (Pa. Super. 1996).

Furthermore, Appellant never disputes that there was only one sentence he

could receive under the plea agreement.

      This lack of dispute is corroborated by the written colloquy and the

trial court’s uncontested characterization of the proceedings at issue. In the

former, Appellant answered yes to the questions “[D]o you understand that

the Judge is not bound to accept the agreement?” and “Do you understand

that if the Court rejects the plea agreement, you may change your mind and

withdraw your guilty plea?” Guilty Plea Colloquy at 5. Thus, for all practical

purposes, the written colloquy established the same condition as in

Prendes—i.e., Appellant understood that the court could reject the plea

bargain with the negotiated sentence, which was fully described in the

colloquy, but also understood that, if the court did so, Appellant would be

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permitted to withdraw his plea.     Thus, although the imposition of the

negotiated sentence was not the only possible outcome, it was the only

sentence to which Appellant could be bound as a consequence of that plea.

If the court rejected the plea, Appellant would be free to withdraw his plea

and proceed to trial, mooting all incidents of the plea.   Put another way,

Appellant knew with certainty that he would only be bound to his guilty plea

if the court imposed the agreed-upon sentence specified therein. Moreover,

the trial court asserts, and Appellant does not dispute, that Appellant

“entered into a negotiated plea agreement and was aware of the only

possible sentence he would receive.” T.C.O. at 7.

     For these reasons, we find that the relevant principles articulated in

Prendes apply to the instant case. Here, as in Prendes, Appellant entered

into a plea agreement that hinged upon the imposition of an agreed-upon

sentence of which Appellant was fully apprised. Appellant executed a written

colloquy, to which was attached the guilty plea information including the

negotiated sentence.   Months later, Appellant sought to withdraw the plea

after the trial court had made clear that it accepted the terms of that

agreement, just as the trial court had done in Prendes.     Notwithstanding

that Prendes presented very different procedural circumstances, the

principle upon which that ruling was based was not materially qualified or

expressly restricted to those specific circumstances.   Rather, it stated in

plain terms that the manifest injustice standard must apply to a defendant

seeking to withdraw a duly entered plea that includes a negotiated sentence

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of which the defendant was fully apprised at the time the plea was entered.

Appellant’s arguments focus upon the factual differences, but omit to

articulate a basis upon which the underlying legal rule should not apply in

the instant matter. We do not find any relevant, self-evident distinction that

might fill this void. Consequently, the trial court did not err in applying the

manifest injustice standard prescribed by Prendes, and Appellant is not

entitled to relief.   Because Appellant does not materially contest the trial

court’s application of the manifest injustice standard to the facts of this case,

our determination that the court utilized the proper standard concludes our

analysis.

      Judgment of Sentence affirmed.

      Judge Allen joins the memorandum.

      PJE Bender concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2015




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