J-S84022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    RICHARD CARTAGENA                          :
                                               :   No. 1100 MDA 2017
                       Appellant

              Appeal from the Judgment of Sentence May 2, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0000496-2016


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 20, 2018

        Richard Cartagena appeals from his judgment of sentence, entered in

the Court of Common Pleas of York County, after he entered an open guilty

plea to one count of acquisition or possession of a controlled substance by

misrepresentation.1 Upon review, we affirm.

        The underlying charges in this matter stem from incidents occurring

between July 28 and October 28, 2015, in which Cartagena made photocopies

of a legitimate prescription for oxycodone and fraudulently attempted to have

them filled at various pharmacies. On August 2, 2016, Cartagena appeared

before the court for the purpose of entering a guilty plea. However, during

the course of those proceedings, it became apparent to the court that

Cartagena and his then-counsel, Michael F. Fenton, Esquire, were having
____________________________________________


1   35 P.S. § 780-113(a)(12).
J-S84022-17



communication difficulties, rendering continued representation by that

counsel impossible. Accordingly, the court declined to accept Cartagena’s plea

on that date and authorized him to obtain new counsel.

       Thereafter, on March 13, 2017, Cartagena appeared with new counsel,

William H. Graff, Jr., Esquire, and entered an open plea of guilty to the above

charge.    The court accepted the plea and ordered both pre-sentence and

intermediate punishment (“IP”) evaluations be performed prior to sentencing.

On May 2, 2017, Cartagena was deemed ineligible for IP because of prior

harassment and firearms offenses. The court sentenced him to 77 to 140

months’ incarceration.

       On May 9, 2017, Cartagena filed a pro se motion to withdraw his plea.

As he was still represented by counsel, on May 11, 2017, counsel filed a formal

petition to withdraw plea on Cartagena’s behalf. The court held a hearing on

June 16, 2017.         At the outset of the hearing, Cartagena requested a

continuance for the purpose of securing new counsel.2       The court denied

Cartagena’s request and proceeded with a hearing on the motion to withdraw,

at the conclusion of which it denied the motion.

       Cartagena subsequently retained new counsel, his third, who filed a

timely notice of appeal and court-ordered concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).



____________________________________________


2 Cartagena had written to the court approximately two weeks earlier
indicating he intended to retain new counsel.

                                           -2-
J-S84022-17



      On appeal, Cartagena raises the following issues for our review:

      1. Did the trial court err in denying [Cartagena’s] [m]otion to
         [w]ithdraw [h]is [g]uilty [p]lea where the plea was unknowing
         and involuntary because it was induced by a promise to
         conduct an intermediate punishment evaluation that was an
         empty formality due to Cartagena’s categorical ineligibility for
         intermediate punishment?

      2. Did the trial court err in forcing Cartagena to proceed on the
         [m]otion to [w]ithdraw [g]uilty [p]lea with counsel whose
         ineffectiveness he had alleged instead of granting Cartagena’s
         request for a continuance to secure conflict-free counsel?

Brief of Appellant, at 4.

      Cartagena first asserts that the trial court erred in refusing to grant his

motion to withdraw his guilty plea. The standard for permitting a defendant

to withdraw a plea of guilty varies according to the point in the proceedings

at which the motion to withdraw is made. Our Supreme Court has established

significantly different standards of proof for defendants who move to withdraw

a guilty plea before sentencing and for those who move to withdraw a plea

after sentencing. See Commonwealth v. Lesko, 467 A.2d 307, 310 (Pa.

1983) (allowing accused to withdraw guilty plea after imposition of sentence

requires stricter standard to prevent defendants from using guilty plea as tool

for previewing court’s sentence; such misuse does not occur when

withdrawing guilty plea prior to sentencing). With regard to post-sentence

motions to withdraw, a defendant must demonstrate that manifest injustice

would result if the court were to deny his post-sentence motion to withdraw a

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



                                      -3-
J-S84022-17


      To be valid under the “manifest injustice” standard, a guilty plea
      must be knowingly, voluntarily and intelligently entered.
      Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super.
      2003). “A manifest injustice occurs when a plea is not tendered
      knowingly, intelligently, voluntarily, and understandingly.”
      Commonwealth v. Gunter, [] 771 A.2d 767, 771 ([Pa.] 2001).
      The Pennsylvania Rules of Criminal Procedure mandate pleas be
      taken in open court and require the court to conduct an on-the-
      record colloquy to ascertain whether a defendant is aware of his
      rights and the consequences of his plea. Commonwealth v.
      Hodges, 789 A.2d 764, 765 (Pa. Super. 2002), citing
      Pa.R.Crim.P. 590. Under Rule 590, the court should confirm, inter
      alia, that a defendant understands: (1) the nature of the charges
      to which he is pleading guilty; (2) the factual basis for the plea;
      (3) he is giving up his right to trial by jury; (4) the presumption
      of innocence; (5) he is aware of the permissible ranges of
      sentences and fines possible; and (6) the court is not bound by
      the terms of the agreement unless the court accepts the plea.
      Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003).
      The reviewing court will evaluate the adequacy of the 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 (Pa. Super.
      2002). 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. Pollard, supra.

Commonwealth v. Kpou, 153 A.3d 1020, 1023–24 (Pa. Super. 2016)

(brackets omitted). A written plea colloquy may be used to supplement the

oral colloquy of the defendant. Pa.R.Crim.P. 590, note.

      Here, Cartagena alleges that his plea was involuntary because he was

promised an IP evaluation and “pled guilty with the understanding that . . . he

had at least the possibility of IP.”   Brief of Appellant, at 15 (emphasis in

original).   Although an IP evaluation was performed, in reality, IP was

categorically unavailable to him because of his prior convictions.          Thus,

because his IP evaluation was a “meaningless formality,” Cartagena argues

                                       -4-
J-S84022-17



that his plea was unknowing and involuntary.          Cartagena is entitled to no

relief.

          Cartagena does not argue that he was promised an IP sentence in

exchange for entering a plea, either by his own counsel or by the

Commonwealth. Rather, he acknowledges that he was promised merely an

IP evaluation, which he, in fact, received.        While he may not have been

explicitly told by his counsel        that, due to his prior record, he would be

ineligible for IP, he understood that, pursuant to his open plea agreement, his

sentence was left entirely to the discretion of the trial court.       While the

Commonwealth has an affirmative duty to honor all promises that serve as an

inducement to a defendant to plead guilty, Commonwealth v. Jackson, 546

A.2d 105, 108 (Pa. Super. 1988), Cartagena received the benefit of his

bargain when the IP evaluation was performed. Although Cartagena hoped

he might receive an IP sentence, disappointed expectations as to the sentence

imposed do not vitiate voluntary guilty pleas. Commonwealth v. Edwards,

612 A.2d 1077, 1079 (Pa. Super. 1992), citing Commonwealth v. Brown,

363 A.2d 1249 (Pa. Super. 1976).

          The record as a whole demonstrates that Cartagena’s plea was entered

knowingly, intelligently and voluntarily.3 Prior to entering his plea, Cartagena

____________________________________________


3 To the extent Cartagena’s claim rests on allegations of plea counsel’s
ineffectiveness, it must await collateral review under the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-9546. See Commonwealth v. Holmes, 79 A.3d
562 (Pa. 2013) (subject to two narrow exceptions not applicable here, all
claims of counsel’s ineffectiveness must be deferred until collateral review).

                                           -5-
J-S84022-17



completed and signed an extensive written plea colloquy, in which he

acknowledged that: he was entering an open plea and would receive an IP

evaluation; the trial court was not constrained to accept any sentence

recommendations; no other promises had been made to him in exchange for

his plea; he was satisfied with his attorney’s representation; and he had not

been coerced to enter a plea. In addition, the written colloquy set forth the

nature of the charge against Cartagena and permissible range of his sentence,

see Written Plea Colloquy, 3/13/17, at ¶ 25, and the fact that he is presumed

innocent, see id. at ¶ 18. During the oral colloquy, the court confirmed that

Cartagena understood the written colloquy and that nothing had been

promised to him in exchange for his plea. See N.T. Guilty Plea, 3/13/17, at

4-5. Cartagena also acknowledged the factual basis for his plea. See id. at

6-7. Finally, counsel requested, and the court ordered, that Cartagena be

given an IP evaluation. See id. at 7-9.

        Subsequently, at the very outset of the sentencing proceeding, defense

counsel noted that Cartagena was ineligible for IP due to his prior record.

Defense counsel requested that the Commonwealth waive Cartagena’s

ineligibility, but the district attorney declined to do so.      Nevertheless,

Cartagena chose to proceed to sentencing rather than asking to withdraw his

plea.

        In light of the foregoing, it is apparent that Cartagena was aware that

he was not guaranteed an IP sentence and that the trial court retained full

discretion to sentence him as it saw fit.    His plea was entered knowingly,

                                      -6-
J-S84022-17



intelligently, and voluntarily. Thus, Cartagena is unable to demonstrate the

manifest injustice necessary for the post-sentence withdrawal of his guilty

plea. Kpou, supra. Accordingly, the trial court did not err in denying his

request to withdraw his plea.

      Cartagena also claims that the trial court erred in forcing him to proceed

at the hearing on his motion to withdraw rather than granting him a

continuance to seek new counsel.          Cartagena asserts that counsel was

conflicted because, he claims, counsel had “offered my IP with my open plea

if not I would’ve gone to trial[.]” Brief of Appellant, at 21. Cartagena also

argues that counsel did not strenuously argue on his behalf to withdraw his

plea and, in fact, conceded that Cartagena could not demonstrate the manifest

injustice necessary to prevail. He is entitled to no relief.

      It is well-settled that the decision to grant or deny a request for a

continuance is within the sound discretion of the trial court. Commonwealth

v. Pries, 861 A.2d 951, 953 (Pa. Super. 2004). The trial court’s determination

      will be reversed only upon a showing of an abuse of discretion. As
      we have consistently stated, an abuse of discretion is not merely
      an error judgment. Rather, discretion is abused when the law is
      overridden or misapplied, or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill-will,
      as shown by the evidence or the record.

Commonwealth v. Prysock, 972 A.2d 539, 541 (Pa. Super. 2009) (internal

citations and quotation marks omitted).

      “The right to counsel is guaranteed by both the Sixth Amendment to the

United States Constitution and by Article I, Section 9 of the Pennsylvania

                                       -7-
J-S84022-17



Constitution. . . . [T]hese constitutional rights entitle an accused ‘to choose

at his own cost and expense any lawyer he may desire.’” Commonwealth

v. Antidormi, 84 A.3d 736, 746 n.8 (Pa. Super. 2014), quoting Prysock,

972 A.2d at 542. “[H]owever . . . the constitutional right to counsel of one’s

choice is not absolute.” Id. Rather, it must be exercised at a reasonable time

and in a reasonable manner. Commonwealth v. Thomas, 879 A.2d 246,

261 (Pa. Super. 2005), citing Commonwealth v. Novak, 150 A.2d 102, 109

(Pa. 1959). While a defendant is entitled to choose his own counsel, he should

not be permitted to unreasonably “clog the machinery of justice or hamper

and   delay   the   state’s   efforts    to   effectively   administer   justice.”

Commonwealth v. Baines, 389 A.2d 68, 70 (Pa. 1978).

      Here, the trial court denied Cartagena’s request for a continuance to

obtain new counsel because it believed he was merely seeking to stall the

proceedings in the hopes of obtaining a different result, i.e., an IP sentence.

The court’s conclusion is supported by the record. First, although Cartagena

had advised the court two weeks prior to the hearing that he was hiring other

counsel, he had taken no steps to do so by the date of the hearing. Second,

Attorney Graff, whom Cartagena sought to replace, was the second counsel

with whom Cartagena had developed a conflict. Cartagena alleged that his

original attorney essentially abandoned him, telling the court:

      [THE DEFENDANT]: But my other lawyer, Fenton, he withdrew on
      me, just like that. My money just went to waste. He got granted,
      and I don’t know why, you know what I mean. No question was
      asked why he’s stepping off my case, why he’s withdrawing.


                                        -8-
J-S84022-17


        Nobody ever asked that. He just took my money and fleed [sic]
        out the back door.

N.T. Motion to Withdraw Hearing, 6/16/17, at 21. However, the record belies

Cartagena’s assertion.       At Cartagena’s original plea hearing, the following

exchange transpired between the court and Cartagena:

        THE COURT: Well, sir, are you asking or do you agree with
        Attorney Fenton that you are not able to communicate with him
        any further as attorney and client?

        THE DEFENDANT: Excuse me?

        THE COURT: Attorney Fenton has indicated that he feels he
        cannot communicate with you any further. Do you agree with him
        or disagree with him?

        THE DEFENDANT: I agree with him.

N.T. Hearing, 8/2/16, at 6.        As the record demonstrates, Cartagena’s claim

that his first counsel abandoned him was disingenuous, at best. As such, the

trial court properly viewed his second request to obtain new counsel for what

it was – a futile attempt to obtain a more satisfactory sentence.

        In sum, the record demonstrates that Cartagena was dissatisfied with

his sentence and hoped that a new attorney would obtain a different result.

However, as demonstrated above, Cartagena’s guilty plea was entered

knowingly, intelligently and voluntarily.4 Accordingly, he was not entitled to

withdraw his plea and new counsel could do nothing to change that fact.

Therefore, the trial court did not abuse its discretion in denying Cartagena’s

request for a continuance to retain new counsel.
____________________________________________


4   We note that Cartagena is represented by new counsel on appeal.

                                           -9-
J-S84022-17



     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/20/2018




                                 - 10 -
