J-S41028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID A. ADEWUMI

                            Appellant                No. 1902 MDA 2014


            Appeal from the Judgment of Sentence October 23, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001348-2013


BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 07, 2015

        David A. Adewumi appeals from the judgment of sentence imposed by

the Court of Common Pleas of Centre County following his conviction of two

counts each of stalking1 and harassment.2       Adewumi challenges the trial

court’s denial of his request to withdraw his nolo contendere plea in relation

to the aforementioned crimes. In the alternative, Adewumi challenges both

the legality and discretionary aspects of his sentence. After careful review,

we affirm in part, vacate in part and remand for resentencing.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. § 2709.1(a).
2
    42 Pa.C.S. § 2709(a).
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     The trial court summarized the facts and procedural history of the

matter as follows:

     [Appellant], David A. Adewumi[,] was charged with two counts
     of [s]talking and two counts of [h]arassment.

     By way of background, [Adewumi] requested that his bail be
     lowered so he could seek mental health treatment.               On
     September 10, 2013, an Order was entered by the Honorable
     Judge Kistler reducing bail from $50,000 to $1,000 and, if
     released on bail, [Adewumi] was directed to attend the
     Meadow[s] Psychiatric Clinic for a mental health evaluation and
     to follow the recommendations of the evaluator. He was to
     report to the Meadows Psychiatric Clinic within four hours of
     release from the Centre County Correctional Facility. He was
     also ordered to have no contact with [T.L.], the stalking victim in
     this case. On February 10, 2014, a bench warrant was issued
     for failure to appear. [Adewumi] did not go to the Meadows but
     instead fled to California. He was returned to Pennsylvania
     through the extradition process. Bail was rescinded and was set
     on April 16, 2014[,] at $50,000 straight.

     On September 16, 2014, [Adewumi] entered a [nolo contendere
     plea] and signed a written [nolo contendere] colloquy.
     [Adewumi] filed a pro se document on October 6, 2014, despite
     having counsel appointed to represent him at that time, raising
     several convoluted issues including an apparent challenge of his
     plea and seeking to defend himself[,] which seemed to relate
     more to his other cases. Subsequent to the charges being filed
     in the herein stalking case, [Adewumi] was charged with
     institutional vandalism at docket number CP-14-CR-1367-2013.
     While he was incarcerated in connection with the stalking case,
     he caused damage by tampering with a sprinkler system at
     Centre County Correctional Facility.      [Adewumi] was also
     charged with making false reports at docket number CP-14-CR-
     1694-2013. He made false complaints that corrections officers
     at Centre County Correctional Facility had grabbed his genitals.
     These two cases were consolidated and are [also] currently on
     appeal with the Honorable Superior Court.

     [Adewumi] was scheduled for sentencing on October 15, 201[4].
     On that date, he made a [motion to withdraw his nolo
     contendere plea]. The scheduled sentencing date was continued


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      to allow the Commonwealth adequate time to respond to his
      motion. On October 23, 2013, this [c]ourt heard [Adewumi’s
      motion] which was denied and [Adewumi] was sentenced.

      A pre-sentence investigation was prepared which this [c]ourt
      considered. For Count 1, Stalking, [Adewumi] was sentenced to
      undergo imprisonment for a period of not less than one (1) year
      nor more than (5) years in a state correctional institution. Credit
      was given of fifty-five days served. For Count 2, Stalking, he
      was sentenced to undergo imprisonment for a period of not less
      than one (1) year nor more than (5) years in a state correctional
      institution.  For Count 3, Harassment, he was placed on
      probation for a period of twelve months to run consecutive to the
      sentence imposed at Count 2. For Count 4, Harassment, he was
      ordered to pay a fine of $50.00. These sentences are to run
      consecutive to those imposed on [Adewumi’s] other docket
      numbers[.] [Adewumi] did not file [p]ost-[s]entence [m]otions.

Trial Court Opinion, 1/9/15, at 1-2.

      Adewumi raises the following issues on appeal:

      1. Did the trial court err in not permitting Adewumi to withdraw
         his plea?

      2. Did the trial court impose a manifestly excessive sentence
         and abuse its discretion?

      3. Where stalking is not qualified [as] a crime of violence, did
         the lower court err in finding [Adewumi to be Recidivism Risk
         Reduction Incentive] ineligible?

Appellant’s Brief, at 5-6.

      “A trial court’s decision regarding whether to permit a guilty plea to be

withdrawn    should   not    be   upset   absent   an   abuse   of   discretion.”

Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa. Super. 2011) (citation

omitted).   An attempt to withdraw a nolo contendere plea is considered

based upon the same standard as an attempt to withdraw a guilty plea. See

Commonwealth v. Boatwright, 590 A.2d 15, 19 (Pa. Super. 1991).                 A



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defendant must show a “fair and just” reason for withdrawing a plea that

does not cause “substantial prejudice” to the Commonwealth.        Id.   “The

proper inquiry . . . is whether the accused has made some colorable

demonstration, under the circumstances, such that permitting withdrawal of

the plea would promote fairness and justice.”           Commonwealth v.

Carrasquillo, ___ A.3d ___, 2015 WL 3684430, at *8 (Pa. 2015).

However, “a bare assertion of innocence is not, in and of itself, a sufficient

reason to require a court to grant such a request.” Id. at *1.

      As noted by our Supreme Court in Carrasquillo, prior decisions of the

Court had lent the impression that a claim of innocence in connection with a

request to withdraw a guilty or nolo contendere plea prior to sentencing was

a per se fair and just reason for the withdrawal of the plea. See id. at *7.

In clarifying the Court’s stance, Carrasquillo provides that trial courts have

discretion to deny the withdrawal of a plea involving a mere assertion of

innocence, particularly where such an assertion lacks plausibility. Id. at *8.

The circumstances present in Carrasquillo that led to a lack of plausibility

involved the strength of the Commonwealth’s case, Carrasquillo’s insincerity

and manipulation of the system, and the farfetched explanation Carrasquillo

provided of his innocence. See id. at *3, 8.

      Here, Adewumi did not proclaim his innocence when he first made the

request to withdraw his nolo contendere plea on October 15, 2014, the day

he had been scheduled for sentencing.       Instead, Adewumi indicated his

unhappiness with counsel and the outcome of the case. Subsequently, the

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court heard argument on Adewumi’s motion to withdraw the plea on October

23, 2015. During these proceedings, Adewumi asserted his innocence, but

only after the Commonwealth pointed out that he had not done so. Later in

the proceedings, when the court questioned him directly, Adewumi again

asserted his innocence.

      The record reveals, however, that Adewumi consistently manipulated

the criminal justice system throughout the pendency of this matter.

Adewumi was represented by a series of different attorneys; one was unable

to continue representing Adewumi because Adewumi failed to maintain

contact with the attorney, while Adewumi asserted the ineffectiveness of

another. Adewumi repeatedly alternated between proceeding with counsel

and proceeding pro se, apparently doing so when he considered it to be

convenient to his case. While incarcerated for the instant harassment and

stalking charges, Adewumi convinced the trial court to reduce his bail so that

he could be released and check himself into a mental health facility for

treatment.   Instead of entering the treatment facility as agreed, however,

Adewumi fled to California and had to be extradited to Pennsylvania at

significant cost to the Commonwealth.

      During the motion to withdraw and sentencing proceedings, Adewumi

continued to demonstrate deceitful and manipulative tendencies. Adewumi

claimed that his attorney was ineffective, yet switched from representing

himself to proceeding with the very same “ineffective” attorney representing

him for the sentencing itself.    The Commonwealth presented testimony

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during the proceedings on the motion to withdraw indicating that earlier on

that day, while the victim’s mother was testifying to the impact of

Adewumi’s actions, Adewumi “broke into a wide grin and [] made an

exaggerated wink with his left eye as [the victim’s mother] was describing

how hard this was on her daughter.”         N.T. Motion to Withdraw Guilty

Plea/Sentencing, 10/23/14, at 85.      For these reasons, though Adewumi

eventually asserted his innocence, we agree with the trial court that “the

motion to withdraw the plea was meant to further harass and intimidate the

victim and her family.” Trial Court Opinion, 1/9/15, at 5. Furthermore, the

Commonwealth’s evidence implicating Adewumi indicates that his assertions

of innocence are implausible. Carrasquillo, supra, at *8.

      Moreover, we agree with the trial court that the Commonwealth would

be prejudiced by the withdrawal of Adewumi’s plea.           To demonstrate

prejudice in connection with the withdrawal of a plea requires “a showing

that due to events occurring after the plea was entered, the Commonwealth

is placed in a worse position than it would have been had trial taken place as

scheduled.” Commonwealth v. Kirsch, 930 A.2d 1282, 1286 (Pa. Super.

2007). In Kirsch, we determined that the reluctance of a witness to testify

did not result in prejudice to the Commonwealth sufficient to deny the

withdrawal of a guilty plea.   We also noted that it “[was] not a situation

where in the interim a witness ha[d] died or left the jurisdiction, or where

key evidence ha[d] been inadvertently lost or destroyed.” Id. at 1287.




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       Conversely, here, two significant witnesses who would have testified

for the Commonwealth were located outside the jurisdiction at the time the

trial was scheduled to occur.           The Commonwealth had purchased non-

refundable plane tickets, and the witnesses were prepared to fly to

Pennsylvania from Arizona and California to testify. However, in reliance on

Adewumi’s plea, the Commonwealth informed the individuals that they were

not needed for trial and the flights were not used.                 As such, the

Commonwealth would be prejudiced because it would bear the burden of

again locating these individuals outside the Commonwealth and arranging

for their transportation to Pennsylvania for trial if Adewumi’s plea were

withdrawn.

       Since Adewumi’s nolo contendere plea stands, we turn to the issues

Adewumi raises regarding his sentence.3            An illegal sentence presents a

question     of   law,    and    we    have    a   plenary   standard   of   review.

Commonwealth v. Williams, 997 A.2d 1205, 1208 (Pa. Super. 2010).

       Adewumi first asserts that his sentence is illegal because he is eligible

for a Recidivism Risk Reduction Incentive (RRRI) sentence. The trial court

did not consider an RRRI sentence for Adewumi, finding that Adewumi is

precluded from this type of sentence because of the violent nature of his


____________________________________________


3
  Because we conclude that the trial court imposed an illegal sentence, we
will not address the discretionary sentencing issue Adewumi raises regarding
the length of his sentence.



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offenses.4    Adewumi contends that stalking is not a “crime of violence,”

citing to the list of crimes in 42 Pa. C.S. § 9714(g). 5 However, the stalking

statute itself provides that violation of a protection from abuse (PFA) order is

a   “crime    of   violence.”      See     18    Pa.C.S.   §   2709.1(c);   see   also

Commonwealth v. Bortz, 909 A.2d 1221, 1223 (Pa. 2006) (“‘crime of

violence’ occurs when there is a violation of an extant PFA order issued

under 23 Pa.C.S. § 6108.               This language is explicit and free from

ambiguity.”)       The stalking charges for which Adewumi was instantly

sentenced involved actions in direct violation of a PFA order the victim had

obtained against Adewumi.6 Thus, we find that Adewumi is not entitled to

an RRRI sentence.




____________________________________________


4
  The relevant portion of the RRRI statute includes that an “eligible offender”
is a defendant who meets certain eligibility requirements including that the
individual “[d]oes not demonstrate a history of present or past violent
behavior.” 61 Pa.C.S. § 4503.
5
  Section 9714 deals generally with sentences for second and subsequent
offenses and lists crimes that are considered to be crimes of violence “[a]s
used in this section.” 42 Pa.C.S. § 9714(g). Thus, the listed crimes have no
bearing on whether a crime of violence was committed instantly, particularly
where the stalking statute provides that violation of a PFA order constitutes
a crime of violence. See 18 Pa.C.S. § 2709.1(c).
6
  The victim obtained a PFA order on April 19, 2013, prohibiting Adewumi
from contacting or following her. The PFA order was amended on April 23,
2013, and May 14, 2013, ultimately extending the expiration of the order to
October 13, 2014.



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       Adewumi next asserts that his sentence is illegal because the crime of

harassment merges with the crime of stalking for sentencing purposes. 7 “A

claim that crimes should have merged for sentencing purposes raises a

challenge to the legality of the sentence.” Commonwealth v. Quintua, 56

A.3d 399, 400 (Pa. Super. 2012) (citing Commonwealth v. Allen, 24 A.3d

1058, 1062 (Pa. Super. 2011)). Pursuant to our Judicial Code,

       [n]o crimes shall merge for sentencing purposes unless the
       crimes arise from a single criminal act and all of the statutory
       elements of one offense are included in the statutory elements of
       the other offense. Where crimes merge for sentencing purposes,
       the court may sentence the defendant only on the higher graded
       offense.

42 Pa.C.S. § 9765.          In the instance of the crimes of harassment and

stalking, this Court has determined that “one can harass without stalking,

but one cannot stalk without also harassing. Stalking is simply a more

serious form of harassment. Consequently, we find that harassment is a

constituent offense of stalking.” Commonwealth v. Reese, 725 A.2d 190,

192 (Pa. Super. 1999).

       Here, Adewumi’s sentence includes incarceration for two stalking

charges, probation for one harassment charge, and a fine for a second

harassment charge. One stalking charge alleges that “[b]etween 03/31/13 –
____________________________________________


7
  This argument was not raised prior to its inclusion in Adewumi’s appellate
reply brief. However, we may sua sponte “address an illegal sentence and
remand the matter to the trial court even in the absence of the preservation
of the claim as the issue is non-waivable.” Commonwealth v. Mitchell,
986 A.2d 1241, 1244 (Pa. Super. 2009).



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05/15/13, . . . [Adewumi] repeatedly appeared at locations where he knew

the victim would be present, to include her high school, her bus stop outside

the high school, and her place of employment.” Criminal Complaint, at 2.

One of the harassment charges is directly related, as it is based upon the

identical language and same course of conduct.         Likewise, the second

stalking charge and second harassment charge are predicated on identical

language and the same course of conduct, including that “[b]etween

03/31/13 – 05/15/13, . . . [Adewumi] repeatedly communicated to the

victim through text messages and emails.”         Id. at 2-3.     Thus, each

harassment charge is based upon the same criminal act as one of the

stalking charges and therefore merges into the correlated stalking charge.

Reese, supra.

      Because the trial court erroneously sentenced Adewumi regarding the

harassment charges in addition to the stalking charges, we remand so that

the trial court can resentence Adewumi based upon the stalking charges

only. See 42 Pa.C.S. § 9765; see also Commonwealth v. Wilson, 934

A.2d 1191 (Pa. 2007) (where appellate court’s disposition upsets trial court’s

original sentencing scheme, remanding for resentencing is appropriate

disposition).




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      Judgment of sentence affirmed with respect to the trial court’s refusal

to permit the withdrawal of Adewumi’s plea and vacated with respect to

separate sentencing for stalking and harassment charges. Case remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2015




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