J-S52040-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
NORMAN HARVEY A.K.A. ERIC ELROD,          :
                                          :
                 Appellant                :     No. 439 MDA 2018

           Appeal from the Judgment of Sentence April 19, 2016
             in the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0005198-2015

BEFORE:     BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:           FILED: NOVEMBER 9, 2018

      Norman Harvey a.k.a. Eric Elrod (Appellant) appeals nunc pro tunc

from his judgment of sentence of 10 to 23 months in prison, imposed

following his negotiated guilty plea. Upon review, we affirm.

      In June 2015, Frederick McCarty was arrested after presenting a

forged prescription to a pharmacy.       While he was in custody, McCarty

informed store security that his friend “Q” (later identified as Appellant) and

another person named Steven Smith were outside in a vehicle with a glove

box full of cocaine, heroin, and prescriptions. Police were called, and they

located the vehicle with Appellant and Smith inside. The vehicle contained a

forged prescription for Oxycodone in Smith’s name, thirteen vials of cocaine,

four bundles of heroin, two Oxycodone tablets, four Suboxone films, four cell




*Retired Senior Judge assigned to the Superior Court.
J-S52040-18


phones, a paper cutter, and sixteen sheets of white paper with two

counterfeit prescriptions on each page.

      Appellant was charged with various crimes in connection with this

incident.   On April 19, 2016, Appellant entered a negotiated guilty plea to

one count of criminal attempt to acquire a controlled substance by fraud;

four counts of conspiracy to acquire a controlled substance by fraud; three

counts of manufacture, delivery, or possession with intent to manufacture or

deliver a controlled substance; and one count of unlawful possession of

instruments of a crime. The trial court sentenced him on the same date to

an aggregate term of 10 to 23 months in prison in accordance with the plea

agreement. Appellant did not file a post-sentence motion or appeal.

      On October 13, 2016, Appellant timely filed a petition pursuant to the

Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, alleging, inter alia, that

his plea counsel was ineffective for failing to file a post-sentence motion to

withdraw his guilty plea. Following appointment of counsel and a hearing,

the PCRA court reinstated Appellant’s post-sentence and appellate rights

nunc pro tunc and provided Appellant with twenty days from the date of its

order in which to file a post-sentence motion.1,2         PCRA Court Order,

10/16/2017, at 1.


1
 The PCRA court permitted Appellant’s original appointed PCRA counsel to
withdraw and appointed new counsel to represent Appellant for the post-
sentence motion and appeal. PCRA Court Order, 10/16/2017, at 1.
(Footnote Continued Next Page)


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      Appellant complied, filing his November 6, 2017 post-sentence motion

to withdraw his guilty plea within 20 days of the October 16, 2017 order

authorizing the same. Within the motion, Appellant made a bare assertion

of his innocence and contended that he did not enter into the plea

knowingly,    intelligently,       and      voluntarily.   Motion   to   Withdraw   Plea,



(Footnote Continued)   _______________________




2  The PCRA court’s order provided Appellant with twenty days in which to file
his post-sentence motion. This was in error.         See Pa.R.Crim.P. 708,
Comment (“In those cases in which a petitioner under the [PCRA] has been
granted leave to file a post-sentence motion or to appeal nunc pro tunc, the
filing of the post-sentence motion or the notice of appeal must comply with
the timing requirements contained in paragraph (A) of this rule.”). To be
considered timely filed, Appellant needed to have filed his post-sentence
within ten days of the PCRA court’s order. Pa.R.Crim.P. 720(A)(1) (“[A]
written post-sentence motion shall be filed no later than 10 days after
imposition of sentence.”).

       Furthermore, because Appellant’s post-sentence motion was untimely
filed, the filing of that motion did not toll the thirty-day appeal period. See
Pa.R.Crim.P. 720(A)(3). Appellant had until November 15, 2017, to file a
notice of appeal. Appellant did not file his notice of appeal until March 6,
2018, which was within thirty days of the February 13, 2018 order denying
his post-sentence motion, instead of within thirty days of the October 18,
2017 order reinstating his appellate rights.

      “Generally, an appellate court cannot extend the time for filing an
appeal.” Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super.
2007). “Nonetheless, this general rule does not affect the power of the
courts to grant relief in the case of fraud or breakdown in the processes of
the court.” Id. Because the trial court misinformed Appellant regarding the
timeframe for filing a motion following reinstatement of his post-sentence
rights pursuant to the PCRA, we find there has been a breakdown in the
processes of the court and will consider Appellant’s notice of appeal as
having been timely filed.



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11/6/2017, at ¶¶ 18-20. The Commonwealth filed a response, and the trial

court denied Appellant’s motion without a hearing on February 13, 2018.

        This   appeal   followed.3   Appellant   presents   one   issue   for   our

consideration: whether the trial court abused its discretion by denying his

post-sentence motion to withdraw his guilty plea. See Appellant’s Brief at 7.

        This Court reviews the denial of a post-sentence motion to withdraw a

guilty plea by the following standard.

        It is well-settled that the decision whether to permit a defendant
        to withdraw a guilty plea is within the sound discretion of the
        trial court. Although no absolute right to withdraw a guilty plea
        exists in Pennsylvania, the standard applied differs depending on
        whether the defendant seeks to withdraw the plea before or
        after sentencing. When a defendant seeks to withdraw a plea
        after sentencing, he must demonstrate prejudice on the order of
        manifest injustice. [A] defendant may withdraw his guilty plea
        after sentencing only where necessary to correct manifest
        injustice.

                                       ***

        Manifest injustice occurs when the plea is not tendered
        knowingly, intelligently, voluntarily, and understandingly. In
        determining whether a plea is valid, the court must examine the
        totality of circumstances surrounding the plea. 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.

Commonwealth v. Hart, 174 A.3d 660, 664–65 (Pa. Super. 2017)

(internal citations and quotation marks omitted). Inter alia, the law imposes

a stricter standard for post-sentence withdrawal motions in order to balance

3   Both Appellant and the trial court have complied with Pa.R.A.P. 1925.



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“the tension … between the individual’s fundamental right to a trial and the

need for finality in the proceedings.” Commonwealth v. Hvizda, 116 A.3d

1103, 1106 (Pa. 2015).

      On appeal, Appellant argues that the trial court abused its discretion in

denying his motion because he is actually innocent. Appellant’s Brief at 14.

He further argues that he did not enter into a knowing, intelligent, and

voluntary guilty plea. Id. at 13-14.

      Regarding Appellant’s claim of innocence, “this Court has held that

post-sentence claims of innocence do not demonstrate manifest injustice.”

Commonwealth v. Kpou, 153 A.3d 1020, 1024 (Pa. Super. 2016) (citing

Commonwealth v. Myers, 642 A.2d 1103, 1108 (Pa. Super. 1994) (“A

defendant’s post-sentence recantation of guilt does not rise to the level of

prejudice on the order of manifest injustice sufficient to require that he be

permitted to withdraw his plea of guilty.”)).

      Turning to Appellant’s claim that he entered into the plea unknowingly,

unintelligently, and involuntarily, we note that the legal argument Appellant

advanced in his post-sentence motion to withdraw is different from the legal

argument that Appellant presents to this Court on appeal. In his motion to

withdraw, Appellant argued that his plea was unknowing, unintelligent, and

involuntary because he did not understand the nature of the conspiracy

charges and the factual basis for implicating him for criminal attempt of

acquiring a controlled substance by fraud and the possession of the


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instruments of crime.   Motion to Withdraw Plea, 11/6/2017, at ¶¶ 19-20.

On appeal, Appellant argues that his plea was unknowing, unintelligent, and

involuntary because he felt “ambushed by the plea deal” and had no

knowledge of the negotiated plea prior to entering court; trial counsel did

not provide Appellant with any trial strategies other than his advice to take

the negotiated plea; and “Appellant has repeatedly claimed that he felt

blindsided, unaware, and unsure of the process of the plea agreement.”

Appellant’s Brief at 13. Because Appellant presents a legal argument to this

court that differs from the one he presented to the trial court, he has failed

to preserve the argument and his claim is waived.         Commonwealth v.

Rush, 959 A.2d 945, 949 (Pa. Super. 2008).

      Even if Appellant had preserved his argument, we discern no abuse of

discretion in the trial court’s conclusion that Appellant entered into the plea

knowingly, intelligently, and voluntarily, and thus he cannot demonstrate the

occurrence of a manifest injustice.      The trial court reasoned that the

Commonwealth’s      attorney   conducted     a   complete    colloquy,   which

demonstrated Appellant’s understanding of the terms of the plea agreement,

the correctness of the charges, the agreed-upon sentence, and the

constitutional rights he was giving up by pleading guilty.         Trial Court

Opinion, 6/21/2018, at 4 (citing N.T., 4/19/2016, at 2).      Appellant stated




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that he and his attorney went over the guilty plea form together.4 Id. at 5

(citing N.T., 4/19/2016, at 3). Appellant further stated that he did not have

any questions about any of the charges, he understood the written colloquy

form he signed, and he did not have any questions about “anything.”      Id.

(citing N.T., 4/19/2016, at 3-5). The factual basis and nature of all of the

charges to which Appellant pleaded guilty were explained to Appellant on the

record. Id. (citing N.T., 4/19/2016, at 3-5).

      Appellant stated under oath that he understood the plea agreement

and the charges to which he was pleading guilty. N.T., 4/19/2016, at 3-5.

He cannot now assert that he did not understand the plea agreement

process, the nature of the charges, or the factual basis for the charges. See

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (“A

person who elects to plead guilty is bound by the statements he makes in

open court while under oath and he may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.”).   We agree with the trial court that Appellant has not

demonstrated the manifest injustice necessary to permit him to withdraw

the plea after sentence was imposed. The guilty plea colloquy in this case


4
  Appellant also acknowledged in the written colloquy that he was satisfied
with his attorney’s representation of him, and his attorney had explained to
him all of the charges, the legal elements of each charge, and the maximum
penalties for each charge. Guilty Plea Colloquy, 4/18/2016, at 2 (numbering
supplied).



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establishes that he willingly and voluntarily agreed to plead guilty, after

negotiating a favorable plea bargain, with full understanding of the

consequences of his decision and of the rights he would be giving up by

pleading guilty.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/9/2018




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