J-S33040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

DWAYNE ROBERT MUSSOMELE

                            Appellant                    No. 1737 WDA 2015


            Appeal from the Judgment of Sentence August 31, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0010592-2015


BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 14, 2016

        Appellant, Dwayne Robert Mussomele, appeals from the judgment of

sentence entered in the Allegheny County Court of Common Pleas, following

his negotiated guilty plea to receiving stolen property.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

Beginning in or around March 2015, Appellant performed construction work

on Mr. and Mrs. McAdoo’s home.             In June 2015, Mrs. McAdoo noticed she

was missing jewelry from her home.             The McAdoos reported the missing

jewelry to Nathan Ebaugh, who was in charge of the construction crew. Mr.

Ebaugh spoke to his crew about the missing jewelry, and Appellant initially

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1
    18 Pa.C.S.A. § 3925.


___________________________

*Former Justice specially assigned to the Superior Court.
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denied having any knowledge        about   the   missing   items.   Following

Appellant’s conversation with Mr. Ebaugh, Appellant stopped reporting for

work.    Several weeks after their conversation, Appellant admitted to Mr.

Ebaugh that Appellant was in possession of a wedding ring Mrs. McAdoo had

reported missing. Appellant also admitted he had sold some of the missing

jewelry to a pawnshop. Mr. Ebaugh called local pawnshops and was able to

track down some of the jewelry.     The pawnshop confirmed Appellant had

sold some of the items reported missing, and that the pawnshop had already

re-sold some items.      As to the jewelry the pawnshop still had in its

possession, Mr. Ebaugh purchased that jewelry to return to the McAdoos.

The McAdoos filed a police report on July 18, 2015, accusing Appellant of

stealing jewelry and other items missing from their home.

        On July 19, 2015, Mr. Ebaugh arranged to meet Appellant to retrieve

the missing items Appellant had in his possession.         Appellant gave Mr.

Ebaugh a green cloth bag containing a white gold wedding band, a yellow

gold chain, and a gold plated bracelet.    Police officers were dispatched to

assist Mr. Ebaugh, and they subsequently detained Appellant and brought

him to the police station for questioning.    Appellant informed police that

while he was working on the McAdoos’ home, Appellant was outside walking

around and saw a green bag with a yellow string hanging from under a

branch at a property near the McAdoos’ home. Appellant said he was unsure

to whom the bag belonged, so he kept it. Appellant conceded he “made a


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bad choice” by not turning in the bag to police.       Appellant admitted he

pawned some of the jewelry he found in the bag. Following the interview,

police spoke with Mrs. McAdoo, who confirmed where her jewelry and other

missing items had been stored inside the home before they went “missing.”

     The Commonwealth subsequently charged Appellant with receiving

stolen property. On August 31, 2015, Appellant entered a negotiated guilty

plea to that crime in exchange for twenty-four months’ probation and

$4,355.00 in restitution.   Appellant signed a plea offer sheet expressly

stating the amount of restitution and the length of the negotiated sentence.

Appellant also completed a written plea colloquy confirming his decision to

plead guilty was knowing, intelligent, and voluntary. At the beginning of the

guilty plea hearing, the clerk read on-the-record the terms of the negotiated

guilty plea, including the amount of restitution and the length of the

negotiated sentence. The parties stipulated to the facts as set forth in the

criminal complaint and affidavit of probable cause.    After conducting a full

guilty plea colloquy, the court accepted Appellant’s plea as knowing,

intelligent, and voluntary, and imposed the negotiated sentence of twenty-

four months’ probation and $4,355.00 in restitution.

     On September 24, 2015, Appellant filed a petition for allowance to file

a motion to withdraw his guilty plea nunc pro tunc.        The court granted

Appellant’s requested relief the next day.    Appellant timely filed a post-

sentence motion to withdraw his guilty plea nunc pro tunc on September 30,


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2015, claiming his guilty plea was invalid because Appellant was uninformed

about the length of his sentence and the amount of restitution when he

entered his plea. The court denied Appellant’s motion that day. Appellant

timely filed a notice of appeal on October 30, 2015. On November 30, 2015,

the court ordered Appellant to file a concise statement of errors complained

of on appeal, and Appellant complied.

      Appellant raises one issue for our review:

         WAS [APPELLANT’S] GUILTY PLEA NEITHER KNOWINGLY
         NOR INTELLIGENTLY MADE; THUS A MANIFEST INJUSTICE
         OCCURRED AND THE TRIAL COURT ERRED IN NOT
         ALLOWING [APPELLANT] TO WITHDRAW HIS PLEA?

(Appellant’s Brief at 4).

      Appellant argues he did not understand the terms of his negotiated

plea agreement before he pled guilty. Appellant asserts he was unaware the

court would sentence him to twenty-four months’ probation and impose

restitution in the amount of $4,355.00. Appellant claims the plea offer sheet

he signed was confusing because it indicated the value of the jewelry at

issue as $1,220.00.     Appellant contends the criminal complaint does not

suggest the value of the jewelry is $4,355.00.     Appellant insists the plea

offer sheet was also unclear because in the space marked “months

probation” the number “12” is written, crossed out with the number “24”

written next to it.   Appellant maintains the totality of the circumstances

demonstrates his plea was unknowing, unintelligent, and involuntary.

Appellant concludes he established prejudice demonstrating a manifest

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injustice, and this Court must reverse the order denying Appellant’s post-

sentence motion to withdraw his guilty plea. We disagree.

        “[A] defendant has no absolute right to withdraw a guilty plea; rather,

the decision to grant such a motion lies within the sound discretion of the

trial court.”     Commonwealth v. Muhammad, 794 A.2d 378, 382

(Pa.Super. 2002). Withdrawal of a guilty plea after sentencing requires “a

showing of prejudice on the order of manifest injustice…. A plea rises to the

level   of   manifest   injustice   when   it   was   entered   into   involuntarily,

unknowingly, or unintelligently.” Id. at 383 (internal citations and quotation

marks omitted). A defendant’s disappointment with the sentence imposed

does not represent a manifest injustice. Id. Pennsylvania law presumes a

defendant who entered a guilty plea was aware of what he was doing and

bears the burden of proving otherwise.          Commonwealth v. Pollard, 832

A.2d 517 (Pa.Super. 2003).          A defendant who decides to plead guilty is

bound by the statements he makes while under oath, “and he may not later

assert grounds for withdrawing the plea which contradict the statements he

made at his plea colloquy.” Id. at 523.

        “This Court evaluates the adequacy of the guilty plea colloquy and the

voluntariness of the resulting plea by examining the totality of the

circumstances surrounding the entry of that plea.” Muhammad, supra at

383-84. A guilty plea will be deemed valid if an examination of the totality

of the circumstances surrounding the plea shows that the defendant had a


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full understanding of the nature and consequences of his plea such that he

knowingly    and   intelligently   entered   the   plea   of   his   own   accord.

Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006).

      Additionally, with respect to negotiated plea agreements:

         [W]here the guilty plea agreement between the
         Commonwealth and a defendant contains a negotiated
         sentence, …and where that negotiated sentence is
         accepted and imposed by the court, a defendant is not
         allowed to challenge the discretionary aspects of the
         sentence. Commonwealth v. Reichle, [589 A.2d 1140
         (Pa.Super. 1991)].     We stated, “If either party to a
         negotiated plea agreement believed the other side could,
         at any time following entry of sentence, approach the
         judge and have the sentence unilaterally altered, neither
         the Commonwealth nor any defendant would be willing to
         enter into such an agreement.” Id. at 1141.

         We find the reasoning of Reichle particularly pertinent in
         this case. Appellant entered a negotiated guilty plea and
         now seeks to avoid a specific term negotiated as part of
         that arrangement. If we allowed him now to avoid the
         term, it “would undermine the designs and goals of plea
         bargaining,” and “would make a sham of the negotiated
         plea process.” [Id.]

Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa.Super. 2003) (some

internal citations and quotation marks omitted).

      Instantly, the trial court addressed Appellant’s request to withdraw his

guilty plea as follows:

         [Appellant] completed a written plea colloquy and engaged
         in an on-the-record colloquy with this [c]ourt. …

         [Appellant] claims his plea was unknowing and involuntary
         because he was not informed of the details of the sentence
         before signing his plea. This claim is belied by the written
         plea offer that [Appellant] and his counsel signed, as well

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         as the transcript of the plea and sentencing hearing.
         [Appellant] was sentenced pursuant to his negotiated plea
         agreement and, after sentence was imposed, he stated
         that he understood his sentence and had no questions. At
         no time did [Appellant] object, question or inform the
         court that his guilty plea was anything other than
         knowingly and voluntarily entered. …

(Trial Court Opinion, filed December 2, 2015, at 2-3). We see no reason to

disrupt the court’s analysis. See Muhammad, supra.

      The record makes clear Appellant understood he was pleading guilty to

receiving stolen property and facing twenty-four months’ probation and

$4,355.00 in restitution, pursuant to the parties’ negotiated plea agreement.

The plea offer sheet expressly states the amount of restitution as $4,355.00

with multiple circles drawn around that number.        The plea offer sheet

contains a notation stating “Jewelry $1,222.00,” written near the top of the

page, but the record suggests that dollar amount correlates with the value of

the jewelry actually recovered from Appellant on the day of his arrest, and

not the total value of all jewelry stolen. Appellant ignores that the McAdoos

reported other items stolen from their home as well. Regarding the length

of sentence, the number “12” is crossed out with a slash through it; the

number “24” is written next to it and circled in the space marked “months

probation.” Appellant and his counsel both signed the plea offer sheet.

      Additionally, at the beginning of Appellant’s guilty plea hearing, the

court clerk stated the terms of the negotiated sentence, indicating the length

of the agreed-upon sentence and the amount of restitution. Appellant told


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the court he understood the terms of his plea agreement and did not object

following the court’s acceptance of his guilty plea or the imposition of

sentence. When the court asked Appellant if he had any questions regarding

his sentence, Appellant said no.   The record shows Appellant had a full

understanding of the nature and consequences of his plea.       See Rush,

supra. Further, allowing Appellant to renege on his end of the bargain at

this juncture would run afoul of the concept of negotiating plea agreements.

See Byrne, supra; Reichle, supra. Therefore, the court properly denied

Appellant’s post-sentence motion to withdraw his guilty plea. Accordingly,

we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2016




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