J-S37021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ANTONIO CARTER,

                         Appellant                   No. 1787 EDA 2014


           Appeal from the Judgment of Sentence May 13, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008902-2013


BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED AUGUST 07, 2015

      Appellant, Antonio Carter, appeals from the judgment of sentence

entered on May 13, 2014, in the Philadelphia County Court of Common

Pleas. We affirm.

      In an opinion filed on October 16, 2014, the trial court set forth the

relevant facts and procedural history of this matter as follows:

            On June 21, 2013, Appellant was charged with rape,
      indecent assault, and other related charges. On May 13, 2014,
      prior to proceeding to trial, Appellant indicated his desire to
      enter a nolo contendere plea. Appellant, represented by
      Zachary Shaffer, Esquire, entered into a negotiated nolo
      contendere plea to indecent assault, a felony in the third degree.
      Appellant    negotiated   with   the    Commonwealth       for   a
      recommendation of sentence consisting of time served to 23
      months with immediate parole followed by five years reporting
      probation, tier III Megan’s law lifetime reporting, sex offender
      supervision, and no unsupervised contact with minors for the
      third-degree felony indecent assault plea. The Commonwealth
      entered a nolle prosequi on the other related charges.
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            [The trial court] conducted a thorough colloquy of
     Appellant (N.T. 5/13/14, 4-8). During the colloquy, Appellant
     was specifically informed of the crime and facts to which he was
     pleading nolo contendere; he acknowledged that he understood
     them (N.T. 5/13/14, 5-8). In addition, Appellant in writing, again
     confirmed his nolo contendere plea (Written Nolo Contendere
     Colloquy, Appendix A). This Court then performed an oral
     colloquy, during which the Appellant responded affirmatively to
     all questions regarding whether or not he was knowingly,
     intelligently and voluntarily entering the plea (N.T. 5/13/14, 7-
     8). This Court accepted Appellant’s nolo contendere plea.
     Defense counsel then agreed to immediate sentencing. (N.T.
     5/13/14, 9). Appellant did not file a motion to withdraw his plea
     prior to sentencing, or indicate any desire to do so. This Court
     then sentenced the Appellant to the negotiated sentence of time
     served to 23 months with immediate parole plus five years of
     sex offender probation, and tier III Megan’s Law lifetime
     reporting. (N.T. 5/13/14, 10-11).

           On May 13, 2014, after sentencing, Appellant filed a Post
     Sentence Motion, namely a Petition to Withdraw Nolo
     Contendere Plea. In his Petition, Appellant claimed he is
     asserting his innocence. (Petition to Withdraw Nolo Contendere
     Plea, Appendix B). This Court denied the petition to withdraw the
     plea without a hearing in an Order dated June 6, 2014. (Order,
     6/6/14, Appendix C). On June 13, 2014, this Court received a
     Notice of Appeal to the Superior Court. On June 25, 2014, this
     Court issued an order pursuant to Pa.R.A.P. Rule 1925(b)
     requiring the Appellant to file a concise statement of matters
     complained of on appeal within 21 days. On July 9, 2014,
     Appellant filed his 1925(b) statement.

Trial Court Opinion, 10/16/14, at 1-2 (unnumbered pages).

     On appeal, Appellant claims that the trial court erred in denying his

petition to withdraw his guilty plea.   Appellant’s Brief at 4.   Specifically,

Appellant argues as follows:

           [Appellant] attempted to withdraw his guilty plea, via a
     post sentencing motion. [sic] just hours after his plea was
     entered and he was sentenced. [Appellant] plead nolo
     contendere as part [of] a negotiated plea. [Appellant]

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      continuously asserted his innocence, knew precisely what
      sentence he would be receiving as part of a negotiated plea, and
      attempted to withdraw his plea hours after he plead. None of the
      traditional concerns of post-sentence withdrawals exist, because
      [Appellant] was not sentence-testing, nor did he ever admit
      guilt. Given that those concerns are not present[,] [Appellant’s]
      motion to withdraw should be analyzed under the pre-sentence
      standard.

Id. at 7.

      Our standard of review is well settled:

      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, 450 Pa. 492, 494, 301 A.2d 829,
      830 (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, 450 Pa. 185, 190, 299 A.2d 268,
      271 (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 191,
      299 A.2d 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.

Commonwealth v. Prendes, 97 A.3d 337, 351-352 (Pa. Super. 2014)

(internal quotation marks omitted), appeal denied, 105 A.3d 736 (Pa. 2014).

      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, 450 Pa. 485,
      490, 301 A.2d 592, 595 (1973). Post-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), appeal denied, 613 Pa. 643, 32 A.3d 1276
      (2011). If the appellant knows the only possible sentence he
      can get for the crime to which he pled guilty, then any pre-

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      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, 502 Pa. 511, 517, 467 A.2d 307, 310 (1983).

Prendes, 97 A.3d 337 at 352 (internal quotation marks omitted and

emphasis added).

      Here, Appellant alleges that the trial court erred in applying the post-

sentence standard and, instead, should have applied the more relaxed pre-

sentence standard.      Appellant endeavors to support this argument by

highlighting that he plead nolo contendere to indecent assault as part of his

negotiated plea agreement. Appellant’s Brief at 10. Appellant subsequently

“rethought his decision to [enter a] plea, asserted his innocence, and filed

post sentence motions with the trial court asking to withdraw his plea[.]”

Id.   As noted above, Appellant claims “there is no issue with with [sic]

Appellant     attempting   to   use   his    plea   as   a    ‘sentence-testing

device.’ . . . Appellant was well aware of his sentence as it had been

previously explained to him by council [sic], was clearly detailed on his

written guilty plea colloquy, and was discussed on the record by the trial

court.”     Id. at 10-11 (emphasis added, citations omitted).          Appellant’s

argument is inapposite.

      It is undisputed that Appellant’s plea agreement included a negotiated

sentence of which he was fully aware.       Appellant’s Brief at 10.    “Because

Appellant was fully aware of the sentence he would receive, the ‘manifest

injustice’ standard applied.”    Prendes, 97 A.3d at 354.          Accordingly,

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because the trial court applied the correct standard, we discern no error or

abuse of discretion in the trial court’s order denying Appellant’s motion to

withdraw his guilty plea.   Therefore, we affirm appellant’s judgment of

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2015




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