J-S60023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID LAWRENCE BELINDA                     :
                                               :
                       Appellant               :   No. 1018 MDA 2019

         Appeal from the Judgment of Sentence Entered June 20, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0005016-2018


BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

DISSENTING MEMORANDUM BY PELLEGRINI, J.:                FILED MARCH 11, 2020

        Because I would hold that David Lawrence Belinda (Belinda) did not

need to object when the trial court withdrew the joint negotiated plea

agreement, and because I would find that the trial court abused its discretion

in doing so, I respectfully dissent.

        As the majority recounts, Belinda was charged with burglary, criminal

trespass, simple assault and attempt to commit criminal mischief.          See

Information, 12/7/18. After the case was listed for trial, the Commonwealth

and Belinda sought the trial court’s approval of a negotiated plea agreement.

Under that agreement, Belinda would plead guilty to one count of simple




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*   Retired Senior Judge assigned to the Superior Court.
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assault in exchange for a sentence of time served to 23 months of

incarceration.

      Prior to approving the negotiated plea agreement, the trial court

conducted a “standard” colloquy on the record.        Belinda also completed a

written guilty-plea colloquy. During the oral colloquy, the trial court inquired

if Belinda understood that the trial court was not bound by the plea

agreement. Belinda answered these questions in the affirmative as well as

stating that he had agreed to the terms of the guilty plea.       Following the

colloquies, the trial court concluded that Belinda’s guilty plea was knowingly

and voluntarily entered and the matter proceeded to sentencing. The trial

court then advised Belinda of his right to allocution, prompting the following

exchange:

      [The trial court]: [Belinda], you have the right of allocution. . . .
      Is there anything that you want to say at this time?

      [Belinda]: I just want to say you’re welcome.

      [The trial court]: Say what?

      [Belinda]: I just want to say you’re welcome for your victory.

      [The trial court]: All right. Bring the jury panel up now. I’m not
      going to put up with nonsense like this and game playing.

N.T., 6/19-20/19, at 8.

      Sua sponte, the trial court then withdrew Belinda’s guilty plea pursuant

to Pa.R.Crim.P. 591(A) thereby refusing to approve the negotiated plea

agreement and the case proceeded to a jury trial. The jury acquitted Belinda


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of burglary but found him guilty of criminal trespass, simple assault and

criminal mischief.

      After the verdict and prior to sentencing, Belinda was permitted to

address the trial court.

      [The trial court]: Is there anything that you want to say at this
      time?

      [Belinda]: I did not know saying you’re welcome for the victory
      was a sign of saying I want to go to trial. That was congratulating
      you guys on me conceding that you guys won, that I conceded to
      the decision. I did not say I wanted to go to trial at any time --

      [The trial court]: Well --

      [Belinda]: -- Your Honor.

      [The trial court]: -- the thing that influenced the [trial court] at
      that point was your utter lack of any showing of remorse and the
      cynical, snide expressions that you used, and it was to the [trial
      court] in declaration that you didn’t do any of these things and,
      you know, you were just taking it easy on everybody else.

N.T., 6/19-20/19, at 241-242. The trial court then sentenced Belinda to an

aggregate term of 28 months to 12 years of incarceration. Needless to say,

this was a much harsher sentence than the time served to 23 months of

incarceration that was to be imposed in the negotiated plea and which the trial

court ultimately refused to approve.

      On appeal, Belinda contends that the trial court erred by sua sponte

withdrawing the negotiated plea agreement. The majority does not reach the

merits of that issue, finding that Belinda waived the claim for lack of an




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objection to the trial court’s withdrawal of his plea. This issue of preservation

was neither raised by the Commonwealth nor briefed by the parties on appeal.

      I dissent because there was no need for Belinda to object to the

withdrawal of a negotiated plea agreement. When the trial court withdrew

the negotiated plea, that ended the matter because the trial court had

definitely ruled, having already heard from the parties why they believed the

plea agreement was proper. See e.g., Pa.R.E. 103(b) (“Once the court rules

definitely on the record [as to the admission of evidence] – either before or

after trial – a party need not renew an objection or offer of proof to preserve

a claim of error for appeal.”). Once the request to approve the negotiated

plea was denied, there was no need for Belinda to object to a ruling that the

trial court had already made.

      The majority attempts to support its conclusion by suggesting that

Belinda’s failure to object was some sort of calculation on his part to engage

in “verdict-testing.” The majority speculates that Belinda had a Machiavellian

scheme to lure the trial court into withdrawing the negotiated plea right after

it was entered so that he would get to test whether the jury would fully acquit

him, keeping the plea agreement as a fallback option. Not only is this scenario

far-fetched, there is no evidence in the record to support even an inference

that that was what occurred here.

      Moreover, the case cited by the majority, Commonwealth v. Culsoir,

209 A.3d 433, 437 (Pa. Super. 2019), has no application to this case. Culsoir


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holds that a defendant cannot normally withdraw a plea post-sentence

because it would encourage “entry of guilty pleas as sentencing-testing

devices.” 209 A.3d at 437. Again, that is not what occurred here. The record

is clear that there was no strategic purpose to Belinda’s comments, nor in his

acceptance of the trial court’s decision not to accept his plea. After the trial

was over, Belinda only exercised his right before sentencing to explain his

earlier comments in hopes that the trial court would not impose a harsher

sentence than what he had negotiated.

      As to the merits, the trial court failed to give a proper basis for directing

the withdrawal of Belinda’s plea and rejecting the negotiated plea agreement.

Contrary to the majority’s apparent position that the trial court took the proper

course out of need to prevent Belinda’s attempted gamesmanship, the focus

should be on whether the trial court adequately stated why its sua sponte

withdrawal of the plea was proper.

      Under Pa.R.Crim.P. 591(A), a trial court may withdraw a defendant’s

plea of guilty or nolo contendere prior to sentencing. See Commonwealth

v. Herbert, 85 A.3d 558, 562 (Pa. Super. 2014). However, a trial court’s

discretion to do so has its limits:

      We conclude that when deciding whether to sua sponte withdraw
      a defendant’s guilty plea prior to sentencing, a trial court may
      properly consider whether the defendant has fulfilled his or her
      obligations under the plea agreement. This includes considering
      whether the defendant has cooperated during the sentencing
      process, i.e. appearing for his or her pre-sentence interview and
      sentencing hearing. However, a trial court may not, in most
      circumstances, consider subsequent criminal activity by the

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      defendant in deciding whether to sua sponte withdraw his or her
      guilty plea because, in most cases, such activities are not relevant
      to the validity of the plea.

Id. at 565.

      Additionally, a trial court only has discretion to order the withdrawal of

a plea “based on a claim of innocence” where “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, 115 A.3d 1284, 1292 (Pa. 2015).            A “bare assertion of

innocence is not, in and of itself, a sufficient reason” to withdraw a guilty plea.

Id. at 1285. In no case has a Pennsylvania appellate court condoned a trial

court’s sua sponte withdrawal of a duly entered guilty plea based solely on a

defendant’s perceived impertinence.

      Significantly, the trial court initially accepted Belinda’s plea and was

about to honor his negotiated agreement for a sentence of time served as to

one count of simple assault. It was only during the allocution that Belinda

offended the trial court with a flippant remark. Clearly, Belinda’s comments

did not constitute a failure on his part to fulfill any necessary obligations under

the plea agreement.      Nor did saying “you’re welcome” to the trial court

reasonably suggest that Belinda wanted to assert his innocence or retract his

guilty plea.

      In fact, if the trial court doubted Belinda’s desire to accept his guilt, it

was incumbent on the trial court to seek further clarification on that point.


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See Carrasquillo, 115 A.3d at 1292. The trial court made no such inquiry,

and as the record stands, Belinda never indicated in any way that he wanted

to withdraw his plea or go to trial.

       In this case, the record lacks a “colorable demonstration” that

withdrawal of the plea would be necessary to promote fairness and justice.

To the contrary, the withdrawal of Belinda’s plea completely undermines the

purpose of the rules governing withdrawal of a plea and courtroom

management.1

       Because there was no need for Belinda to object when the trial court

refused to approve the negotiated plea agreement, and I see nothing in the

record that supports the sua sponte withdrawal of Belinda’s plea, I would

vacate the judgment of sentence and remand the case with directions for the

trial court to honor the original plea agreement.




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1 Belinda’s comment clearly fell far short of the type of contumacious conduct
that would obstruct the administration of justice and expose him to sanction
for the summary offense of direct criminal contempt.           See generally
Commonwealth v. Moody, 125 A.3d 1 (Pa. 2015). For criminal contempt,
and specifically “misbehavior” in the presence of a court, the statutory
maximum is only 30 days. See 42 Pa.C.S. § 4137(c). More generally, the
maximum term for a summary offense is 90 days. See Commonwealth v.
Bernal, 600 A.2d 993, 994-95 (Pa. Super. 1992) (citing 18 Pa.C.S. §
106(c)(2)). A third-degree misdemeanor is punishable by up to one year.
See 42 Pa.C.S. § 106(b)(8). Yet, in a roundabout way, Belinda’s remark
subjected him to a period of additional prison time that far exceeds the
maximum punishment for those more serious offenses.

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