J-S55030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

BRANDON WILLIAM GROVER,

                            Appellant                   No. 440 WDA 2015


        Appeal from the Judgment of Sentence Entered August 12, 2014
                 In the Court of Common Pleas of Potter County
             Criminal Division at No(s): CP-53-CR-0000055-2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED SEPTEMBER 29, 2015

        Appellant, Brandon William Grover, appeals from the judgment of

sentence of an aggregate term of 3 to 6 years’ imprisonment, imposed after

he pled guilty to aggravated assault, accidents involving death or personal

injury, and recklessly endangering another person.         Appellant asserts that

the trial court abused its discretion in denying his post-sentence motion to

withdraw his guilty plea. We affirm.

        The trial court summarized the relevant facts and procedural history in

its Pa.R.A.P. 1925(a) opinion as follows:

        On January 30, 2013[,] charges, being 19 counts including 4
        felonies, were filed against [Appellant] concerning an incident
        where it is alleged that [Appellant] did strike two individuals with
        his vehicle. On August 12, 2014, after being scheduled for jury
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S55030-15


     selection on several occasions, [Appellant] pled guilty to Count 3
     – Aggravated Assault; Count 5 – Accidents Involving Death or
     Personal Injury[;] and Count 11 – Recklessly Endangering
     Another Person. Also on August 12, 2014, [Appellant] was
     sentenced in accordance with his binding Plea Agreement with
     an agreed upon sentence of 3-6 years of incarceration. The
     sentence[,] which was reduced to a written Order of Sentence[,]
     was signed on August 13, 2014, and filed on August 14, 2014.

     Subsequently on August 14, 2014, [Appellant] filed a Motion
     Challenging the Validity of Guilty Plea alleging that Defense
     Counsel, Daniel Stefanides[,] and the District Attorney, Andy
     Watson[,] coerced him into entering a guilty plea. Attorney
     Stefanides filed a Motion to Withdraw at the same time as
     [Appellant’s] Motion Challenging the Validity of [ ] Guilty Plea.

     On November 12, 2014[,] Attorney Richard McCoy was
     appointed to represent [Appellant] in the Motion Challenging the
     Validity of Guilty Plea. On December 12, 2014[,] argument was
     heard on both the Motion Challenging the Validity of Guilty Plea
     and the Motion to Withdraw. Attorney Stefanides was granted
     leave to withdraw. [Appellant] provided testimony as to the
     reasoning behind his decision to enter a Plea.          [Appellant]
     reported that prior to entry of the Plea, [ ] he discussed the case
     with the District Attorney and his Attorney, Dan Stefanides[,]
     and that his counsel advised him that he could be facing 15 to
     30 years of incarceration if he did not accept the Plea.
     Thereafter, [Appellant] acknowledged that he signed a binding
     Plea which included a sentence of 3-6 years of incarceration.
     [Appellant] admits that he understood the 3-6 year
     recommended sentence. [Appellant] testified that he obtained
     his GED and attended some education through Boces in NY. The
     Court engaged with [Appellant] in an extensive colloquy at the
     time of the Plea proceeding and [Appellant] acknowledged that
     his Plea was knowing and voluntary.

           [Appellant’s] former counsel, Daniel Stefanides[,] testified
     that he met [Appellant] at the jail on Friday, August 6, 2014[,]
     to discuss the Plan. Attorney Stefanides reported that he had
     advised [Appellant] they could go to trial if he desired to do so.
     Additionally, Mr. Stefanides advised [Appellant] that the Plea
     would result in three of the felonies being nolle prossed.
     Attorney Stefanides testified that he reviewed the Plea
     documents with [Appellant] line by line. Attorney Stefanides
     report[ed] that [Appellant] never made any mention that he felt

                                    -2-
J-S55030-15


      coerced and Counsel was not aware of any threats being made
      to [Appellant]. The Court finds Attorney Stefanides credible and
      [Appellant] to no[t] be credible based upon the testimony and
      the contents of the Plea and Sentencing hearings.

Trial Court Order (TCO), 2/11/15, at 1-2 (unpaginated).

      The trial court denied Appellant’s motion challenging the validity of his

guilty plea by order of court dated February 5, 2015. Appellant timely filed a

notice of appeal on March 6, 2015, followed by a timely court ordered

statement of errors complained of on appeal. Appellant now presents one

issue for our review: “Did the trial court err in denying [Appellant’s] post-

sentence motion to withdraw his guilty plea because [Appellant] testified

that he felt coerced into entering his guilty plea and was denied the

opportunity   to   discuss   extraneous    issue[s]   during   his   allocution?”

Appellant’s Brief at 2.

      We begin by noting the standard for withdrawal of a guilty plea, which

we previously explained in detail as follows:

      [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. Hutchins, 453
      Pa. Super. 209, [212,] 683 A.2d 674, 675 (1996). In the
      seminal case of Commonwealth v. Forbes, 450 Pa. 185, 299
      A.2d 268 (1973), the Supreme Court set forth the standard for
      determining when a motion to withdraw a guilty plea prior to
      sentencing should be granted. The Court stated that “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.” 450 Pa. at 190, 299
      A.2d at 271. The Court then outlined the now well-established
      two prong test for determining when to grant a pre-sentence
      motion to withdraw a plea: (1) the defendant has provided a
      “fair and just reason” for withdrawal of his plea; and (2) the



                                     -3-
J-S55030-15


      Commonwealth will not be “substantially prejudiced in bringing
      the case to trial.” Id.

      The standard for withdrawal of a guilty plea after imposition of
      sentence is much higher; a “showing of prejudice on the order of
      manifest injustice is required before withdrawal is properly
      justified.” Commonwealth v. Carpenter, 555 Pa. 434, 454,
      725 A.2d 154, 164 (1999) (quoting Commonwealth v.
      Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982)). “A plea
      rises to the level of manifest injustice when it was entered into
      involuntarily, unknowingly, or unintelligently.” Commonwealth
      v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999) (citation
      omitted).

Commonwealth v. Muhammad, 794 A.2d 378, 382-383 (Pa. Super.

2002).   As we explained in Muhammad, the higher “manifest injustice”

standard is applied to a post-sentence withdrawal of a guilty plea in an effort

to discourage the entrance of a plea as a “sentence testing device.” Id. We

further note that “disappointment by a defendant in the sentence actually

imposed does not represent manifest injustice.” Id.

      Here, Appellant asserts that he “suffered a manifest injustice in this

case” because he was pressured by his attorney to enter into a guilty plea

based on the false assurance that he would have the right to read a

prepared statement to the court.     Appellant’s Brief at 7.   Appellant claims

that, instead, the court prevented him from reading his entire statement,

thereby denying him a full and complete opportunity to exercise his right of

allocution. Id.

      As explained by the trial court in its Rule 1925(a) opinion:

      On the same date as the Plea, being August 12, 2014,
      [Appellant] was sentenced in conformity with the binding Plea
      Agreement. During that proceeding[, Appellant] read a portion
      of a written statement to the [c]ourt. The subject of the

                                     -4-
J-S55030-15


     statement was [Appellant’s] other case (47 of 2013) and
     [Appellant’s] belief that Judge Leete who was presiding over that
     case should recuse himself. The [c]ourt informed [Appellant]
     that it was only considering matters pertinent to the present
     case. [Appellant] then indicated that for the present case he
     was satisfied with his Plea, satisfied with his attorney’s
     representation, and that he understood his Plea. [Appellant]
     then indicated there was nothing else the [c]ourt needed to
     know about [Appellant] or his life prior to sentencing. When
     asked if they had any questions regarding the sentence of the
     [c]ourt[,] both Defense Counsel and [Appellant] indicated that
     they did not.

TCO at 4 (unpaginated).

     In order to establish manifest injustice, Appellant must show that his

plea was entered into involuntarily, unknowingly, or unintelligently.         To

ascertain whether Appellant entered his plea in such a 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.

Id. at 383-384 (internal quotation marks and citations omitted).

     The record clearly reflects a guilty plea colloquy by the trial court

addressing all of the aforementioned areas.         See N.T. Plea/Sentencing

Hearing, 8/12/14, at 2-7. Moreover, the record indicates that the trial court

specifically asked Appellant regarding his guilty plea: “Now, have you had

enough time to fully discuss this matter, and is your decision something that

you’ve reached and you believe it is a knowing and voluntary decision?” Id.



                                     -5-
J-S55030-15



at 6. Appellant responded, “Yes.” Id. It was not until the hearing on the

post-sentence motion to withdraw his guilty plea that Appellant claimed to

have been coerced into accepting the guilty plea. N.T. Post-Sentence Motion

Hearing, 3/16/15, at 2. “[O]ne is bound by one’s statements made during a

plea colloquy, and may not successfully assert claims that contradict such

statements.” Muhammad, 794 A.2d at 384. See also Commonwealth v.

Barnes, 687 A.2d 1163, 1167 (Pa. Super. 1996). Additionally, Appellant’s

former counsel, Attorney Stefanides, stated during the plea proceeding that

he believed Appellant’s guilty plea to be a knowing and voluntary decision.

N.T. Plea/Sentencing Hearing at 7.             The trial court found Attorney

Stefanides’ testimony to be credible. TCO at 2 (unpaginated).

      At   the    hearing   on   Appellant’s   post-sentence   motion,   Attorney

Stefanides further testified that he went over the plea agreement with

Appellant line by line, Appellant seemed to understand the agreement, and

Appellant never complained about feeling coerced into entering the plea

agreement.       N.T. Post-Sentence Motion Hearing at 23-24.      Moreover, the

trial court indicated that during the post-sentence motion hearing, it “did not

find [Appellant] to be credible when he testified that his counsel and the

Commonwealth coerced him into entering a guilty plea. No mention of said

coercion was made at the time of the Plea Sentencing proceedings.” TCO at

4 (unpaginated). “On issues of credibility … an appellate court defers to the

findings of the trial judge, who has had the opportunity to observe the




                                       -6-
J-S55030-15



proceedings and       demeanor   of the    witnesses.”      Commonwealth v.

Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002).

       We disagree with Appellant’s assertion that he suffered a “manifest

injustice” because the trial court prevented him from reading his prepared

statement in its entirety at the sentencing hearing.            As we noted in

Commonwealth v. Jacobs, 900 A.2d 368 (Pa. Super. 2006), “[a]llocution

is governed by Pa.R.Crim.P. 704(C)(1), which states: At the time of

sentencing, the judge shall afford the defendant the opportunity to make a

statement in his or her behalf and shall afford counsel for both parties the

opportunity to present information and argument relative to sentencing.”

Commonwealth v. Jacobs, 900 A.2d at 375. (internal quotations omitted

and emphasis added). “The significance of allocution lies in its potential to

sway    the   court   toward   leniency   prior   to   imposition   of   sentence.”

Commonwealth v. Hague, 840 A.2d 1018, 1020 (Pa. Super. 2003).

       Although Pennsylvania courts have not specifically addressed the limits

of the right to allocution, the Third Circuit provided the following guidance in

U.S. v. Ward, 732 F.3d 175 (3d. Cir. 2013):

       Under existing jurisprudence, the defendant’s right of allocution
       is not unlimited. The sentencing judge has always retained the
       discretion to place certain restrictions on what may be presented
       during an allocution. … [A] sentencing judge may impose
       procedural limitations during an allocution, so long as the judge
       personally addresses the defendant and offers him the
       opportunity to address the court before the sentence is
       pronounced.

Id. at 182-183. (internal citations omitted).


                                      -7-
J-S55030-15



      Here, the trial court did give Appellant the opportunity to read his

prepared statement prior to sentencing. See N.T. Plea/Sentencing Hearing

at 7. However, Appellant’s statement focused primarily on a separate prior

case and his grievances with the prior judge. Id. at 18-19. The presiding

trial court judge interrupted Appellant to explain to him that he was not

sentencing him based on what happened in the prior case and that there

were other avenues by which he could pursue his claims against the prior

judge. Id. at 19-21. The court then inquired whether there was anything

Appellant wanted the court to know about himself or whether there were

changes he wanted to make in his life that would affect the court’s

determination regarding his sentence. Id. Even after Appellant responded

by continuing to reference the prior case, it is clear by the following colloquy

that the trial court attempted to give Appellant every chance to exercise his

right of allocution:

      THE COURT: … Just talking about this case, my understanding is
      you’re satisfied with your plea today in this matter, you’re
      satisfied with your attorney in this matter, you understand this
      plea, all of that is true, is that correct?

      [APPELLANT]: Yes.

      THE COURT: Is there anything else I should know about you,
      [Appellant], about your life, about what you want to do with
      your life that would be important to me in making decisions on
      this case?

      [APPELLANT]: No, Your Honor.

N.T. Plea/Sentencing Hearing at 21-22.




                                     -8-
J-S55030-15



     After careful review of the record, we conclude that Appellant failed to

demonstrate that his guilty plea was entered in an involuntary, unknowing,

or unintelligent manner.   Therefore, he did not establish the manifest

injustice necessary for the post-sentence withdrawal of his guilty plea.

Accordingly, the trial court did not err in denying Appellant’s motion to

withdraw his plea.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2015




                                   -9-
