J-S47039-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
PRECIOUS C. ROBERTS,                      :
                                          :
                 Appellant                :     No. 220 WDA 2018

          Appeal from the Judgment of Sentence January 4, 2018
            in the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0010343-2017

BEFORE:     OLSON, MCLAUGHLIN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED SEPTEMBER 19, 2018

      Precious C. Roberts (Appellant) appeals from the January 4, 2018

judgment of sentence of six months of non-reporting probation following his

negotiated guilty plea to resisting arrest, defiant trespass, and two counts of

simple assault. We affirm.

      Appellant was charged with numerous offenses following an altercation

between Appellant and police officers after Appellant, who was ordered to

leave UPMC Mercy Hospital, refused to do so. Appellant appeared before the

plea court on January 4, 2018 and pled guilty to the aforementioned crimes.

Pursuant to the negotiated guilty plea, the Commonwealth agreed to amend

two counts of aggravated assault to simple assault and also agreed to a

sentence of non-reporting probation. Following the entry of his guilty plea,

Appellant opted to proceed immediately to sentencing. The plea court


*Retired Senior Judge assigned to the Superior Court.
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     accepted the parties’ sentencing agreement for six [] months of
     non-reporting probation at the [s]imple [a]ssault counts, to be
     served concurrently. No further penalty was imposed at the
     remaining counts of conviction. Court costs were waived.
     [Appellant] was ordered to have no contact with any UPMC
     Hospitals, with the exception of UPMC St. Margaret so that
     [Appellant] could consult his primary care physician in the case
     of an emergency.

Plea Court Opinion, 3/16/2018, at 1-2 (citations omitted).

     On January 11, 2018, Appellant filed a post-sentence motion to

withdraw his guilty plea. In his post-sentence motion, Appellant alleged that

various physical and emotional ailments caused him to enter an unknowing

plea. Post-Sentence Motion, 1/11/2018. Based on Appellant’s averments,

the court set a hearing. As aptly summarized by the plea court:

           At the post-sentence motion hearing held on January 31,
     2018, [Appellant] testified that he began experiencing flu
     symptoms the day after his plea and sentencing. He indicated
     that he was concerned about his symptoms because he had been
     sick with pneumonia twice in the last year and a half and
     because he had a back injury which required him to be in a body
     cast until November of 2017.         [Appellant] testified that he
     “wasn’t feeling that good” on the day of his plea and sentencing
     and that his illness affected his ability to intelligently, knowingly
     and voluntarily enter into his plea because he was “sick the
     whole following week[. …” Appellant] claimed that his back
     injury, which was sustained months before the plea hearing,
     contributed to his inability to understand what was happening on
     the day of his plea because he was “fairly weak,” and he was
     “preoccupied” with trying to fight off his flu symptoms. As a
     result of his physical injury and sickness, [Appellant] testified
     that he felt “emotionally distraught” at the time of his plea.
     [Appellant] also testified that he did not feel coerced into
     pleading guilty.

           On cross-examination, [Appellant] acknowledged that he
     was asked on the day of his guilty plea whether there was
     anything that could have hindered his ability to plead guilty, but

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        he claimed that he answered “yes” to that question. He also
        acknowledged that, on the day of the hearing, he was afforded
        additional time to consider whether to plead guilty. [Appellant]
        claimed that he “took a while” to make the decision since he
        “wasn’t feeling good.”

              When questioned by th[e plea] court as to whether he had
        any medical documentation showing that he had sought
        treatment for his sickness, [Appellant] testified that he had
        called the paramedics because of his illness, but that the
        documentation confirming that call and any subsequent
        treatment was at his home. [Appellant] did not specify when he
        called the paramedics. He also claimed that he called his doctor
        for Theraflu, but he did not have any medical documentation to
        support that claim, and he did not specify when he called his
        doctor.

Plea Court Opinion, 3/16/2018, at 3-4 (citations omitted). At the conclusion

of the hearing, the plea court denied Appellant’s motion.

        This timely-filed appeal followed.1 Appellant presents one issue for our

consideration: whether the plea court’s denial of Appellant’s motion to

withdraw his guilty plea resulted “in manifest injustice where [Appellant’s]

diminished mental state prevented the plea from being entered into

knowingly, intelligently, and voluntarily[.]” Appellant’s Brief at 5. We begin

our review mindful of the following.

        The decision to grant or deny a motion to withdraw a guilty plea
        rests within the trial court’s discretion, and we will not disturb
        the court’s decision on such motion unless the court abused that
        discretion.   An abuse of discretion is not a mere error in
        judgment but, rather, involves bias, ill will, partiality, prejudice,
        manifest unreasonableness, and/or misapplication of law. By



1   Both Appellant and the plea court have complied with Pa.R.A.P. 1925.



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      contrast, a proper exercise of discretion conforms to the law and
      is based on the facts of record.

Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013) (citations

omitted).

            The standard for withdrawal of a guilty plea after
      imposition of sentence is much higher [than the standard for
      withdrawal prior to sentencing]; a showing of prejudice on the
      order of manifest injustice is required before withdrawal is
      properly justified. A plea rises to the level of manifest injustice
      when it was entered into involuntarily, unknowingly, or
      unintelligently.

                                     ***

            [T]o establish manifest injustice, Appellant must show that
      his plea was entered in an involuntary, unknowing, or
      unintelligent manner. To ascertain whether Appellant acted in
      such manner, we must examine the guilty plea colloquy. The
      colloquy must inquire into the following areas: (1) the nature of
      the charges; (2) the factual basis of the plea; (3) the right to
      trial by jury; (4) the presumption of innocence; (5) the
      permissible range of sentences; and (6) the judge’s authority to
      depart from any recommended sentence. 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.

Commonwealth v. Muhammad, 794 A.2d 378, 382–84 (Pa. Super. 2002)

(quotation marks and citations omitted).

      In his brief to this Court, Appellant reiterates that he “was suffering

from a combination of mental and physical health problems at the time of

his plea that diminished his ability to respond knowingly and intelligently.”

Appellant’s Brief at 13.

      During the plea, [Appellant] was grieving the loss of his wife, for
      which he was receiving counseling services before his arrest at

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      UPMC Mercy Hospital. During his arrest, [Appellant], who was
      67 at the time, was forced to the ground by multiple officers and
      received a broken back and two broken ribs. [Appellant] was
      still receiving physical therapy to address the pain from the back
      injury he suffered nearly eight months earlier that had required
      him to wear a back brace until November of 2017. [Appellant]
      explained at the post-sentence motion hearing that he had the
      flu and was ill the day of the plea. This illness continued for an
      entire week following the hearing, leaving [Appellant] bedridden.

Id. at 13-14 (citations and unnecessary capitalizations omitted).

      “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.”

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006) (citation

omitted).   “The longstanding rule of Pennsylvania law is that a defendant

may not challenge his guilty plea by asserting that he lied while under

oath[.]” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003).

“Where the record clearly demonstrates that a guilty plea colloquy was

conducted, during which it became evident that the defendant understood

the nature of the charges against him, the voluntariness of the plea is

established.”   Commonwealth v. Stork, 737 A.2d 789, 790 (citation and

internal quotation marks omitted).

      In this case, the plea court found Appellant’s plea was entered

knowingly, intelligently, and voluntarily. Plea Court Opinion, 3/16/2018, at

10 (“Based on the totality of the circumstances surrounding the plea, and

the sworn statements that [Appellant] made under oath at the time of his

plea, [Appellant] failed to meet his burden of proving that his decision to



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plead guilty was not knowing, intelligent or voluntary.”). Our review of the

record as a whole supports the plea court’s findings.

      At Appellant’s guilty plea and sentencing, the plea court conducted a

thorough on-the-record colloquy.     N.T., 1/4/2018, at 3-8.     Additionally,

Appellant was questioned about the comprehensive written colloquy, which

he stated he reviewed and signed.        Id. at 11.     See also Guilty Plea

Explanation of Defendant’s Rights, 1/4/2018.       During the on-the-record

colloquy, Appellant answered “no” when asked, inter alia, if he had taken

any medication, drugs, alcohol or had any mental or physical illness or

infirmity that would impair his ability to understand the proceedings. N.T.,

1/4/2018, at 4-5. Furthermore, Appellant confirmed he: (1) spoke with his

attorney and understood the nature and elements of each charge and the

maximum penalties allowable by law; (2) was not forced, promised,

threatened, or coerced into pleading guilty; (3) reviewed the written guilty

plea form; (4) completed the form with the assistance, advice, and

supervision of his attorney; and (5) read and understood each question and

answered honestly. Id. at 6-7.

      A defendant who enters a guilty plea “is bound by the statements he

makes in open court while under oath and he may not later assert grounds

for withdrawing the plea which contradict the statements he made at his

plea colloquy.” Pollard, 832 A.2d at 523. Here, Appellant confirmed under

oath that he was not suffering from any mental or physical illness or



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infirmity “that would impair [his] ability to understand [the] proceedings or

participate fully in them[.]”   N.T., 1/4/2018, at 5.   Appellant cannot now

assert physical and mental/emotional ailments as the basis for withdrawing

his plea.

      Furthermore, in its opinion to this Court, the plea court stated that it

“vividly” recalled Appellant’s guilty plea and sentencing, asserting Appellant

      seemed alert and aware of the circumstances surrounding his
      plea. He also appeared to fully comprehend the nature of the
      proceedings and was able to directly participate in them. Had
      [Appellant] been disoriented or had he in any way demonstrated
      an inability to comprehend the proceedings at the time due to
      his purported illness, th[e plea] court would have halted the
      proceedings sua sponte and postponed the case until such time
      that [Appellant] was mentally and physically able to proceed.
      The court also notes that [Appellant] could not provide any
      medical documentation to corroborate his claim that he was, in
      fact, ill at the time of the plea.

             Finally, […] in addition to lacking any medical
      documentation regarding his illness, [Appellant] failed to
      articulate how exactly his illness precluded him from being able
      to understand his plea agreement and the attendant issues
      surrounding his waiver of a jury trial other than claiming that he
      was “concerned” about his symptoms. The court notes that this
      general concern about being sick does not rise to the level of
      emotional trauma which would have precluded him from being
      able to comprehend the nature of the proceedings. [Appellant]
      was afforded ample time at the plea hearing to consider the plea
      offer and to discuss the pros and cons of the offer with his
      attorney. There was no surprise as to the sentence because it
      was a negotiated plea agreement, which included a sentencing
      agreement that th[e plea] court accepted. Hence, the prospect
      of sentencing certainly could not have added to [Appellant’s]
      stress or concern.

Plea Court Opinion, 3/16/2018, at 8-9.




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     We agree with the plea court’s conclusions. Appellant fails to cite any

pertinent case law2 to support his contention that his concern over flu-like

symptoms and his rehabilitation from health issues hindered his ability to

comprehend the plea proceedings.     Thus, Appellant has failed to meet his

burden of showing that denial of relief would result in manifest injustice.

See Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009)

(“A defendant must demonstrate that manifest injustice would result if the

court were to deny his post-sentence motion to withdraw a guilty plea.”).

     Based on the foregoing, as Appellant has failed to convince this Court

that the plea court erred by denying his motion, we affirm Appellant’s

judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary

2
 Appellant’s citations to Commonwealth v. Manley, 380 A.2d 1290, 1294
(Pa. Super. 1977) and Commonwealth v. Davis, 110 A. 85, 86 (Pa. 1920),
which discuss the necessity of granting a mistrial when a trial judge or juror
becomes ill, is irrelevant to the issue in this case, and therefore is neither
applicable nor persuasive law.



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Date: 9/18/2018




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