J-S75034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WENDELL B. SAVAGE, JR

                            Appellant                 No. 1347 EDA 2014


      Appeal from the Judgment of Sentence entered February 25, 2014,
               in the Court of Common Pleas of Chester County,
            Criminal Division, at No(s): CP-46-CR-0006776-2013


BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED DECEMBER 08, 2014

        Wendell Savage (“Appellant”) appeals from the judgment of sentence

imposed after he pled guilty to two charges of possession with intent to

deliver (“PWID”).1

        The trial court summarized the pertinent background as follows:

              On August 23, 2013, a Criminal Complaint was filed
        against [Appellant] and he was charged with three counts of
        Possession with Intent to Deliver a Controlled Substance, along
        with other violations of the Drug, Device and Cosmetic Act. The
        charges arose from incidents occurring from March 1, 2012 until
        July 31, 2013, in which [Appellant] sold cocaine to a confidential
        informant. [Appellant] appeared for trial on February 25, 2014,
        however he indicated he would instead enter a guilty plea to
        Counts 1 and 3, both Possession with Intent to Deliver a
        Controlled Substance, ungraded felonies.

                                           ***
____________________________________________


1
    18 P.S. 780-113(a)(30).
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      [The trial court] ultimately found that [Appellant] had knowingly,
      voluntarily and intelligently agreed to plead guilty. As such, [the
      trial court] accepted the plea and sentenced [Appellant] to a four
      year probation period for both Count 1 and Count 3, to run
      concurrently. Additionally, [the trial court] imposed a $1,000
      fine plus court costs.

            On March 6, 2014, [Appellant], through plea counsel, filed
      a Motion to Withdraw Guilty Plea. [The trial court] denied the
      Motion after a hearing that was held on March 20, 2014.
      [Appellant] filed a Notice of Appeal on April 16, 2014. [Both
      Appellant and the trial court have complied with Pa.R.A.P. 1925].

Trial Court Opinion, 6/23/14, at 1-3.

      Appellant presents the following issues for our review:

      1. WHETHER [APPELLANT’S] GUILTY PLEA WAS VOLUNTARILY
         ENTERED, WHERE TRIAL COUNSEL REFUSED TO MAKE A
         CONTINUANCE REQUEST AND ADVISED [APPELLANT] THAT
         COUNSEL WAS UNPREPARED AND UNWILLING TO TRY THE
         CASE?

      2. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW
         [APPELLANT] TO WITHDRAW HIS GUILTY PLEA AFTER
         SENTENCING   WHERE   [APPELLANT]   MAINTAINED   HIS
         INNOCENCE AND TESTIFIED TO THE ACTIONS OF TRIAL
         COUNSEL THAT CAUSED THE PLEA TO BE INVOLUNTARILY
         ENTERED?

Appellant’s Brief at 4. Appellant’s issues are interrelated. Therefore, we will

address them together.

      Post-sentence motions for the withdrawal of a guilty plea are subject

to higher scrutiny than pre-sentence motions, since courts strive to

discourage    entry   of   guilty   pleas    as   sentence-testing    devices.

Commonwealth v. Flick, 802 A.2d 620, 623 (Pa. Super. 2002) (citations

and internal quotations omitted). A showing of manifest injustice is required



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to withdraw a guilty plea after the imposition of sentence. Id. A showing of

manifest injustice may be established if the plea was entered into

involuntarily,   unknowingly,   or   unintelligently.   Commonwealth        v.

Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008) (citations omitted).

             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.

                                         ***

            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.

                                         ***

             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.

Commonwealth v. Yeomans, 24 A.3d 1044, 1046-1047 (Pa. Super. 2011)

(citations and internal quotations omitted).

      Pa.R.Crim.P. 590, which pertains to procedures for entering pleas and

plea agreements, requires pleas to be entered in open court, and specifies

that the trial judge must make inquiries, on the record, to determine

whether the plea is “voluntarily and understandingly tendered.”

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       The comments to Pa.R.Crim.P. 590 provide that at a minimum, the

court should make the following inquiries:              (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?; (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.2

        The comments to Pa.R.Crim.P. 590 also specify that “nothing in the

rule would preclude the use of a written colloquy that is read, completed,

signed by the defendant, and made part of the record of the plea

proceedings. This written colloquy would have to be supplemented by some

on-the-record oral examination.” Id.

       In the present case, Appellant’s assertion that his plea was involuntary

entered is belied by the record. At the guilty plea hearing on February 25,

2014, Appellant was asked whether he was “admitting that in May of 2013

and in July of 2013 ... you sold a bag of cocaine to another individual”, to

which Appellant responded “yes.”               N.T., 2/22/14, at 7-8.   Appellant
____________________________________________


2
  The Comment to Pa.R.Crim.P. 590 includes a seventh proposed question
that pertains only to defendants who plead guilty to murder.



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confirmed that nobody “forced, threatened or coerced” him into pleading

guilty and that he had made the decision to plead guilty.            Id. at 5.

Furthermore, in the written colloquy, initialed and signed by Appellant, he

indicated that he committed the crimes, that his plea was voluntary, and

that he understood the nature of his plea. See Written Guilty Plea Colloquy,

2/25/14, at 1-9.    Appellant additionally indicated he understood that the

decision to plead guilty was his alone, that he understood that he did not

have to plead guilty, and that nobody could force him to enter a guilty plea.

Id.   He further indicated that he had the opportunity to confer with his

attorney before pleading guilty, and that he was satisfied with his attorney’s

representation.   Id.   At the conclusion of the guilty plea hearing, the trial

court accepted Appellant’s guilty plea as knowingly and voluntarily tendered.

      Given the foregoing, and upon review of the entire record, we find no

error in the trial court’s determination that Appellant’s guilty plea was valid.

“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.” Commonwealth v. Pollard, 832 A.2d 517, 523–24 (Pa. Super.

2003) (citations omitted).      Appellant’s claim that he was coerced into

pleading guilty because his counsel was unprepared to proceed to trial, is

contradicted by Appellant’s oral and written plea colloquies. The trial court

conducted a thorough guilty plea colloquy during which Appellant stated that


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he understood the charges, that he was guilty and that he was not coerced

but was entering a guilty plea of his own free will. Id. at 4-8 When given

the opportunity to raise any complaints regarding the quality of his trial

counsel, Appellant did not do so, but rather indicated that he was satisfied

with his attorney’s representation.    Id.   The trial court, which had the

opportunity to observe Appellant, was assured that the plea was voluntary.

We find no error in the trial court’s determination that Appellant failed to

demonstrate the requisite manifest injustice to support the grant of his post-

sentence motion to withdraw his plea. We therefore affirm the judgment of

sentence

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




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