J-S37039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

SAMUEL LOUIS WHEELER

                            Appellant              No. 1831 WDA 2015


            Appeal from the Judgment of Sentence October 22, 2015
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0000564-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                           FILED JUNE 07, 2016

        Samuel Louis Wheeler appeals from the judgment of sentence entered

in the Court of Common Pleas of Butler County.         On appeal, Wheeler

challenges the voluntariness of his negotiated guilty plea. After our review,

we affirm.

        Wheeler was charged with eight counts of aggravated assault,1 five

counts of criminal attempt (homicide),2 three counts of assault of law

enforcement officer,3 one count of former convict not to own a firearm,4 two
____________________________________________


1
    18 Pa.C.S. § 2702(a)(1), (a)(2), (a)(6).
2
    18 Pa.C.S. § 901(a), 2501(a)(1).
3
    18 Pa.C.S. § 2702.1(a).
4
    18 Pa.C.S. § 6105(a)(1).
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counts of criminal attempt (burglary),5          five counts of terroristic threats,6

ten counts of recklessly endangering another person (REAP), 7 and five

counts of simple assault.8

        On August 25, 2015, Wheeler entered a guilty plea before the

Honorable William Shaffer. On September 22, 2015, Wheeler filed a motion

to withdraw his guilty plea, but subsequently withdrew that motion on

October 7, 2015. On October 22, 2015, the court sentenced Wheeler to an

aggregate sentence of 13-30 years’ imprisonment.

        On October 30, 2015, Wheeler filed a post-sentence motion to

withdraw his guilty plea, which the trial court denied. This appeal followed.

Wheeler raises two issues for our review:

           1. Whether the Trial Court Erred in Failing to Grant Post-
              Sentence Motion to Withdraw Wheeler’s Guilty Plea Based
              on the Involuntary Nature Due to Wheeler’s Mental State?

           2. Whether the Trial Court Erred in Denying the Post-
              Sentence Motion to Withdraw Wheeler’s Guilty Plea Based
              on Involuntary Nature Due to Coercion to Enter the Plea?

Appellant’s Brief, at 7.



____________________________________________


5
    18 Pa.C.S. § 901(a)(3); 3502(a)(1).
6
    18 Pa.C.S. § 2706(a)(1).
7
    18 Pa.C.S. § 2705.
8
    18 Pa.C.S. § 2701(a)(3).



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      There is no absolute right to withdraw a guilty plea. Commonwealth

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

Forbes, 299 A.2d 268, 271 (Pa. 1973).            Nevertheless, “prior to the

imposition of sentence, a defendant should be permitted to withdraw his

plea for ‘any fair and just reason,’” provided there is no substantial prejudice

to the Commonwealth. Commonwealth v. Kirsch, 930 A.2d 1282, 1284–

85 (Pa. Super. 2007), quoting Forbes, 299 A.2d at 271 (Pa. 1973).

However, a post-sentence motion to withdraw a guilty plea is “subject to

higher scrutiny since courts strive to discourage entry of guilty pleas as

sentence-testing devices.” Flick, 802 A.2d at 623. If a court denies a post-

sentence motion to withdraw, a defendant must demonstrate “manifest

injustice.”   Id., citing Commonwealth v. Gunter, 771 A.2d 767 (Pa.

2001); Kirsch, 930 A.2d at 1284.

       “Manifest injustice may be established if the plea was not
      tendered     knowingly,     intelligently,    and  voluntarily.”
      Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa. Super.
      2002), citing Commonwealth v. Persinger, 532 Pa. 317, 615
      A.2d 1305 (1992). In determining whether a plea is valid, the
      court must examine the totality of circumstances surrounding
      the plea. Commonwealth v. Flanagan, 578 Pa. 587, 854 A.2d
      489, 500 (2004). A deficient plea does not per se establish
      prejudice on the order of manifest injustice. Commonwealth v.
      Carter, 540 Pa. 135, 656 A.2d 463 (1995); Commonwealth v.
      Yager, 454 Pa. Super. 428, 685 A.2d 1000 (1996), appeal
      denied, 549 Pa. 716, 701 A.2d 577 (1997).

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

      Wheeler argues that his mental condition precluded him from entering

a voluntary and intelligent plea. He also claims that there were no questions

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with respect to his mental condition at the oral guilty plea colloquy or in the

written colloquy. Wheeler further contends his reluctance to enter the plea

was evident from his prior pre-sentence filing of a motion to withdraw, which

he later withdrew.

      The comment to Pennsylvania Rule of Criminal Procedure 590 states,

in its comment:

      At a minimum the judge should ask questions to elicit the
      following information:

               (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?

               (7)   Does the defendant         understand that the
                     Commonwealth has a         right to have a jury
                     decide the degree of      guilt if the defendant
                     pleads guilty to murder   generally?

Pa.R.Crim.P. 590 - Comment.       See also Commonwealth v. Willis, 369

A.2d 1189 (Pa. 1977); Commonwealth v. Ingram, 316 A.2d 77 (Pa.



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1974); Commonwealth v. Martin, 282 A.2d 241, 244-45 (Pa. 1971).                   A

reviewing 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.

Prendes, 97 A.3d 337, 352 (Pa. Super. 2014). “Pennsylvania law presumes

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

the defendant bears the burden of proving otherwise.”                 Id. (emphasis

added) (citations omitted).

       At the guilty plea colloquy, Wheeler was asked each of the above

questions.     Additionally, Wheeler was questioned as to whether he was

under the influence of any drugs or alcohol that would impair his ability to

make a decision or testify, to which he replied, “No.”              See Guilty Plea

Proceeding, 10/7/15, at 4. He was also asked whether he was “knowingly

and voluntarily entering this plea agreement of [his] own free will,” to which

he replied, “Yes.” Id. at 10.       Wheeler testified that no one had coerced him

or threatened him.        Id.    The court reiterated this question later in the

colloquy. Id. at 13. Further, Wheeler’s counsel acknowledged that a mental

health report had been prepared.9              Id. at 11.   At the conclusion of the


____________________________________________


9
  Although both parties allude to a mental health evaluation dated June 15,
2015, which is included in the reproduced record, that report has not been
included in the certified record on appeal. “[A]any document which is not
part of the officially certified record is deemed non-existent—a deficiency
which cannot be remedied merely by including copies of the missing
(Footnote Continued Next Page)


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colloquy, the court reviewed Wheeler’s written guilty plea colloquy with him.

Wheeler acknowledged that his counsel reviewed each page with him, that

he initialed each page, and that he signed the colloquy form of his “own free

will[.]” Id. at 11.      As the Commonwealth points out, the trial court had full

opportunity to observe Wheeler’s demeanor.             Wheeler did not exhibit

confusion or misunderstanding, he answered each question clearly and

appropriately, and he displayed no hesitation in his responses.        Other than

his bald claim of mental incapacity, Wheeler has failed to establish that he

was unaware of what he was doing or incapable of voluntarily entering a

plea.

        After our review of the record and the circumstances here, we

conclude that Wheeler’s plea was voluntary and knowing and that Wheeler

has therefore failed to meet his burden of establishing manifest injustice.




                       _______________________
(Footnote Continued)

documents in a brief or in the reproduced record. Commonwealth v.
Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005).

        [U]nless the trial court certifies a document as part of the official
        record, the appellate judiciary has no way of knowing whether
        that piece of evidence was duly presented to the trial court or
        whether it was produced for the first time on appeal and
        improperly inserted into the reproduced record. Simply put, if a
        document is not in the certified record, the Superior Court may
        not consider it.

Commonwealth v. Preston, 907 A.2d 1, 7 (Pa. Super. 2006), citing
Commonwealth v. Walker, 878 A.2d 887, 888 (Pa. Super. 2005).



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Broadan, supra. We affirm the order denying his post-sentence motion to

withdraw his guilty plea.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2016




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