J-A21024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 FREDERICK WILLIAMS                     :
                                        :
                   Appellant            :   No. 1236 EDA 2017

          Appeal from the Judgment of Sentence March 24, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0014176-2013


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                     FILED SEPTEMBER 21, 2018

     Appellant, Frederick Williams, appeals from the judgment of sentence

entered on March 24, 2017, as made final by the denial of his post-sentence

motion on April 6, 2017. We affirm in part, vacate in part, and remand for

further proceedings consistent with this memorandum.

     On July 28, 2011, Appellant lured an employee of an antique store to a

van by claiming it contained antiques. Appellant and his confederates forced

the victim into the van and then gang raped her. On November 27, 2013, the

Commonwealth charged Appellant via criminal information with 17 offenses.

On August 26, 2016, in exchange for the Commonwealth agreeing to nolle
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prosse 14 of those charges, Appellant pled guilty to rape,1 kidnapping to

facilitate a felony,2 and conspiracy to commit rape.3       Prior to sentencing,

Appellant moved to withdraw his guilty plea. On November 28, 2016, the trial

court held an evidentiary hearing on Appellant’s motion to withdraw his guilty

plea.    Subsequently, the trial court denied the motion to withdraw and a

motion to reconsider that ruling. On March 24, 2017, the trial court sentenced

Appellant to an aggregate term of 14 to 28 years’ imprisonment. Appellant

filed a post-sentence motion which the trial court denied on April 6, 2017.

This timely appeal followed.4

        Appellant presents three issues for our review:

        1. Did the trial court err and/or otherwise abuse its discretion in
           denying [Appellant’s pre]sentence motion to withdraw his
           guilty plea?

        2. May a [trial] court treat a defendant’s exercise of his
           constitutional right to withdraw his guilty plea pursuant to
           [Pennsylvania Rule of Criminal Procedure] 591, punitively, as
           a basis in deciding to run a defendant’s sentence consecutively
           rather than concurrently?



____________________________________________


1   18 Pa.C.S.A. § 3121(a)(1).

2   18 Pa.C.S.A. § 2902(a)(2).

3   18 Pa.C.S.A. §§ 903, 3121.

4 On April 19, 2017, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On June 4, 2017, Appellant filed his concise statement.
On July 14, 2017, the trial court issued its Rule 1925(a) opinion. All of
Appellant’s issues were included in his concise statement.

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      3. Did the trial court err and abuse its discretion . . . in sentencing
         [Appellant] to consecutive sentences that stemmed from
         vindictiveness, because [Appellant] exercised his constitutional
         right to withdraw his guilty plea pursuant to [Pennsylvania Rule
         of Criminal Procedure] 591?

Appellant’s Brief at 11.

      First, Appellant argues that the trial court erred in denying his motion

to withdraw his guilty plea. “We review a trial court's ruling on a [pre]sentence

motion to withdraw a guilty plea for an abuse of discretion.” Commonwealth

v. Islas, 156 A.3d 1185, 1187 (Pa. Super. 2017) (citation omitted).

Pennsylvania Rule of Criminal Procedure 591(A) provides that, “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).

      “Although there is no absolute right to withdraw a guilty plea, properly

received by the trial court, it is clear that a request made before sentencing

should be liberally allowed.” Commonwealth v. Kpou, 153 A.3d 1020, 1022

(Pa. Super. 2016) (cleaned up).         “In determining whether to grant a

presentence motion for withdrawal of a guilty plea, the test to be applied by

the trial courts is fairness and justice.” Commonwealth v. Elia, 83 A.3d

254, 262 (Pa. Super. 2013) (cleaned up). Therefore, if the defendant provides

a fair and just reason for wishing to withdraw his or her plea, the trial court

should grant it unless it would substantially prejudice the Commonwealth.


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Commonwealth v. Carrasquillo, 115 A.3d 1284, 1287 (Pa. 2015) (citation

omitted).

      To understand the basis of our analysis, we first explain the three

general types of guilty pleas a defendant may enter. The first is often referred

to as an “open” plea. Under an open plea, the defendant does not enter into

an agreement with the Commonwealth. There is no quid pro quo exchange

between the defendant and the Commonwealth whereby the Commonwealth

agrees to some action in exchange for the defendant’s guilty plea. The second

type of guilty plea is where the defendant enters into an agreement with the

Commonwealth, i.e., a plea agreement. The Commonwealth agrees to some

quid pro quo in exchange for the defendant’s guilty plea and, in certain cases,

other actions, e.g., cooperation. These type of guilty pleas are covered by

Pennsylvania Rule of Criminal Procedure 590(B).        Third, a defendant may

enter a guilty plea which is a special subset of the second type of guilty pleas.

Often referred to as “stipulated” guilty pleas, a defendant agrees to plead

guilty in exchange for receiving a specific sentence. Unlike Federal Rule of

Criminal Procedure 11(c)(1)(C), which governs these type of guilty pleas in

federal district court, there is no Pennsylvania Rule of Criminal Procedure

addressing stipulated guilty pleas.      Nonetheless, our common law has

developed to closely mirror Federal Rule of Criminal Procedure 11(c)(1)(C) in

these circumstances.     A defendant who does not receive the stipulated




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sentence is entitled to withdraw his or her guilty plea without having to satisfy

any further requirements.

      Having set forth the three types of guilty pleas, we turn to the facts of

this case.   Appellant did not enter an open guilty plea nor did he enter a

stipulated guilty plea. Appellant pled guilty after reaching a plea agreement

with the Commonwealth, i.e., it was a guilty plea entered pursuant to Rule

590(B). The Commonwealth agreed to nolle prosse 14 charges in exchange

for Appellant pleading guilty to three charges. Moreover, as part of the plea

agreement, Appellant agreed that withdrawal of his guilty plea would

substantially prejudice the Commonwealth. N.T., 8/26/16, at 3-4.

      As the comment to Rule 590 states, our Supreme Court has held that

“the terms of a plea agreement may determine a defendant’s right to withdraw

a guilty plea.” Pa.R.Crim.P. 590 cmt, citing Commonwealth v. Porreca, 595

A.2d 23 (Pa. 1991); see also Commonwealth v. Rotola, 173 A.3d 831, 835

(Pa. Super. 2017) (citation omitted) (“Although a plea agreement occurs in a

criminal context, it remains contractual in nature and is to be analyzed under

contract-law standards.”). Hence, contrary to Appellant’s argument, it was

unnecessary for the Commonwealth to offer further evidence as to substantial

prejudice it would face if Appellant were permitted to withdraw his guilty plea.

      Consistent with Porreca, Appellant limited his ability to withdraw his

guilty plea as part of his plea agreement by agreeing that withdrawal would

substantially prejudice the Commonwealth. As detailed above, a defendant


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cannot withdraw his or her guilty plea prior to sentencing if doing so would

substantially prejudice the Commonwealth. Carrasquillo, 115 A.3d at 1287.

Hence, the trial court properly denied Appellant’s motion to withdraw his guilty

plea as permitting withdrawal would have substantially prejudiced the

Commonwealth.

      Moreover, even if Appellant did not argue that the Commonwealth would

be substantially prejudiced by the withdrawal of his guilty plea, we conclude

that the trial court did not abuse its discretion in finding that he failed to

demonstrate a fair and just reason for permitting withdrawal.          Appellant

argues that there were two fair and just reasons for permitting him to

withdraw his guilty plea. First, he argues that his trial counsel coerced him

into pleading guilty.   Second, he argues that he made a claim of actual

innocence.

      The trial court held an evidentiary hearing on Appellant’s motion to

withdraw his guilty plea. During that evidentiary hearing, Appellant stated

that his counsel coerced him into pleading guilty. See N.T., 11/28/16, at 9-

10.   Appellant’s trial counsel, however, vehemently denied Appellant’s

accusation that he pressured Appellant into pleading guilty. See id. at 23-28.

The trial court credited Appellant’s counsel’s statements and did not credit

Appellant’s statements. This Court will only overturn a trial court’s credibility

determination if it is irrational. See Commonwealth v. Brown, 23 A.3d 544,

551 (Pa. Super. 2011). In this case, the trial court’s credibility determination


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was rational.      Hence, the trial court reasonably exercised its discretion by

finding that trial counsel did not pressure Appellant into pleading guilty.

        Next, Appellant argues that he presented a plausible claim of actual

innocence. This argument is without merit. As our Supreme Court recently

explained, “a bare assertion of innocence is not, in and of itself, a sufficient

reason to require a court to grant [a presentence motion to withdraw a guilty

plea].” Carrasquillo, 115 A.3d at 1285. In this case, Appellant’s claim of

innocence is not plausible. At the evidentiary hearing, Appellant claimed that

he repeatedly lied under oath during his guilty plea colloquy. See N.T.,

11/28/16, at 11-13. Appellant stated at the hearing on the motion to withdraw

his plea that, contrary to his statements during the colloquy, he remembered

the night in question and that he did not rape the victim. See id. at 11.

However, testing showed the presence of Appellant’s DNA in samples found in

the rape kit taken from the victim.        N.T. 8/22/16, at 19.   Hence, as in

Carrasquillo, “the bizarre statements made by [Appellant] in association with

his declaration of innocence wholly undermined its plausibility, particular in

light   of   the    Commonwealth’s     strong   [evidence   supporting   guilt].”

Carrasquillo, 115 A.3d at 1293. Accordingly, Appellant was not entitled to

withdraw his guilty plea based on his implausible claim of actual innocence.

        In his second and third issues, Appellant argues that the trial court

vindictively ordered his sentences to run consecutively because of his attempt

to withdraw his guilty plea. This claim challenges the discretionary aspects of


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his sentence. Commonwealth v. Robinson, 931 A.2d 15, 20–22 (Pa. Super.

2007) (en banc). Pursuant to statute, Appellant does not have an automatic

right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.

§ 9781(b).     Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

       As this Court has explained, in order to reach the merits of a

discretionary aspects claim,

       we must engage in a four part analysis to determine: (1) whether
       the appeal is timely; (2) whether Appellant preserved his [or her]
       issue; (3) whether Appellant’s brief includes a concise statement
       of the reasons relied upon for allowance of appeal with respect to
       the discretionary aspects of sentence; and (4) whether the concise
       statement raises a substantial question that the sentence is
       appropriate under the [S]entencing [C]ode.

Commonwealth v. Machicote, 172 A.3d 595, 602 (Pa. Super. 2017)

(citation omitted). Appellant filed a timely notice of appeal; however, he failed

to preserve this issue in his post-sentence motion and/or at sentencing.

       First, Appellant did not challenge the sentence imposed at the

sentencing hearing. See N.T., 3/24/17, at 39-46.5 Furthermore, it is well-

settled that a post-sentence motion only preserves challenges to the

discretionary aspects of sentencing that are specifically included in the post-

sentence motion. See Commonwealth v. Griffin, 65 A.3d 932, 935–936


____________________________________________


5 Even if we were to conclude that Appellant’s request for concurrent
sentences was a “challenge” to the discretionary aspects of sentencing, that
“challenge” was based on mitigating factors and not based on vindictiveness.
See N.T., 3/24/17, at 38.

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(Pa. Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013).          In his post-

sentence motion, Appellant did not argue that the trial court acted vindictively

by sentencing him to consecutive terms of imprisonment.         See generally

Appellant’s Post-Sentence Motion, 4/2/17.      Accordingly, Appellant did not

preserve his challenge to the discretionary aspects of his sentence.

      Finally, the Commonwealth notes in its brief, and stated at oral

argument, that Appellant received an illegal sentence.      Although Appellant

does not raise this issue, an illegal sentencing claim is not subject to waiver

and this Court may raise the issue sua sponte. Commonwealth v. Moriarty,

180 A.3d 1279, 1288 n.5 (Pa. Super. 2018) (citation omitted). The trial court

designated Appellant a sexually violent predator. However, this Court has

found that the mechanism for designating an offender a sexually violent

predator under the Sexual Offender and Registration Act (SORNA) is

constitutionally flawed and constitutes an illegal sentence. Commonwealth

v. Butler, 173 A.3d 1212, 1214-1218 (Pa. Super. 2017), appeal granted,

2018 WL 3633945 (Pa. July 31, 2018). Accordingly, we vacate the trial court’s

sexually violent predator designation and affirm Appellant’s judgment of

sentence in all other respects.   We remand so the trial court may inform

Appellant of his registration requirements under Megan’s Law II.

      Sexually violent predator designation vacated. Judgment of sentence

affirmed in all other respects. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/18




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