J-S64026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLIE PATTERSON                          :
                                               :
                       Appellant               :   No. 2266 EDA 2017

           Appeal from the Judgment of Sentence February 2, 2017
    In the Court of Common Pleas of Montgomery County Criminal Division
                      at No(s): CP-46-CR-0007382-2011


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.:                            FILED FEBRUARY 12, 2019

       Appellant, Charlie Patterson, appeals from the judgment of sentence

entered on February 2, 2017, following remand and resentencing on his guilty

plea conviction for one count of possession with intent to deliver a controlled

substance (marijuana).1 We affirm.

       We previously summarized the facts and procedural history relevant to

the current appeal as follows:

       On June 10, 2013, Appellant entered into an open guilty plea to
       the charge of possession of a controlled substance (marijuana)
       with the intent to deliver. During the colloquy, Appellant
       acknowledged that his lawyer informed him of the
       Commonwealth's intention to seek imposition of a five-year
       statutory mandatory minimum sentence from which the judge
       would have no power to deviate under the law. N.T., 6/10/13, at
       5. Plea Counsel likewise referred to the applicability of the
       “mandatory minimum sentence” throughout the hearing, and the

____________________________________________


1   35 P.S. § 780-113(a)(30).
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     court also informed Appellant that it “would be constrained on
     some level, because the Commonwealth is going to file the
     mandatory minimum.” [Id.] at 13–14.

     One week later, on June 17, 2013, the United States Supreme
     Court decided Alleyne v. United States, ––– U.S. ––––, 133
     S.Ct. 2151 (2013), in which it held for the first time that any fact
     triggering a mandatory minimum sentence must first be
     submitted to a jury and proved beyond a reasonable doubt.
     Nevertheless, the Commonwealth subsequently filed its “Notice of
     Intent to Seek Mandatory Sentence,” referencing the statutory
     mandatory minimum sentence of five years' incarceration and a
     mandatory minimum fine of $50,000[.00].

     At the sentencing hearing of September 6, 2013, however, the
     court acknowledged that the Commonwealth and Appellant had
     reached a negotiated agreement for a term of incarceration of four
     to eight years with no fine. There is no indication in the transcript
     that the Alleyne decision influenced this change in course or that
     Appellant was aware of the decision's implications, and, in fact,
     statements by the court imply that the statutory mandatory
     minimum remained applicable as a matter of course and would
     have been implemented as indicated during the guilty plea but for
     the “eminently reasonable” decision of the Commonwealth to
     “waiv[e]” its right to enforce it. N.T., 9/6/13, at 2, 5. The court
     accepted the negotiated agreement and imposed sentence
     accordingly. Plea counsel filed neither a post-sentence motion nor
     a direct appeal.

     On September 15, 2014, Appellant filed a pro se petition for relief
     under the [Post Conviction Relief Act (PCRA)], and the court
     appointed PCRA counsel. PCRA counsel filed an amended petition
     on November 24, 2014 averring that plea counsel's ineffective
     failure to advise Appellant of the Alleyne decision and its potential
     impact on his case induced Appellant to plead guilty.

Commonwealth v. Patterson, 143 A.3d 394, 396 (Pa. Super. 2016))

(footnotes omitted). The PCRA court denied relief and an appeal resulted.

     Ultimately, we vacated the PCRA court’s order denying Appellant relief,

remanded the matter to the PCRA court, and concluded:



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      It remains for the PCRA court, however, to conduct an evidentiary
      hearing to determine whether counsel did, in fact, fail to advise
      Appellant about Alleyne's applicability to his case. The record of
      the sentencing hearing, which contains multiple references to the
      favorability of the negotiated sentence over the mandatory
      minimum sentence that could otherwise apply, supports
      Appellant's position sufficiently to warrant remand, where he may
      present evidence that he agreed to the negotiated sentence only
      under the undue influence of an unconstitutional mandatory
      minimum sentencing scheme. Proof of such prejudice stemming
      from counsel's failure to advise him properly of the law would
      entitle Appellant to a new sentencing hearing. An additional
      showing that Appellant would have withdrawn his guilty plea
      altogether had counsel properly advised him of Alleyne and the
      effect it could have on his sentencing would entitle him to
      withdraw his guilty plea.

Id. at 399 (internal citation omitted).

      Thereafter,

      [o]n remand, at a hearing on February 2, 2017, the District
      Attorney negotiated an agreed disposition of the counseled,
      amended PCRA petition with Erin Lentz-McMahon, Esquire, who
      was newly appointed to represent [Appellant].            Under the
      agreement, [Appellant] was resentenced to a term of
      two-and-a-half to five years[’] total confinement, with the original
      commitment date unchanged. The new sentence, filed [on]
      February 3, 2017, fell below the mitigated range of thirty-one
      months prescribed by the [sentencing] guidelines [] and made
      [Appellant] immediately eligible for parole at the discretion of the
      Pennsylvania Board of Probation and Parole. It was more lenient
      and favorable to [Appellant] than any sentence the
      Commonwealth had previously offered.

      [Appellant] testified under oath [at the hearing on remand] that
      he accepted the sentencing agreement; he understood it would
      “resolve” his counseled PCRA claims; he had sufficient time to talk
      with his court-appointed lawyer; and he had no questions for her,
      the prosecuting attorney or [the trial court]. The new sentencing
      order was the exact form of relief sought in the counseled,
      amended PCRA petition, and terms of the new sentence were
      accepted by [Appellant] in court, under oath. While in court, he



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       did not ask to withdraw his plea, nor did he express any
       dissatisfaction with his lawyer or the advice of his lawyer.

Trial Court Opinion, 8/17/2017, at 7-8. This timely appeal resulted.2

       On appeal, Appellant presents the following issue for our review:

       Whether the judgment of sentence of February 2, 2017 must be
       vacated because the trial court did not conduct a full and complete
       on the record colloquy of Appellant pursuant to Pa.R.Crim.P. 590
       to determine that Appellant’s guilty plea was knowingly,
       intelligently, and voluntarily made and not the product of undue
       influence of an unconstitutional mandatory minimum sentencing
       scheme pursuant to Commonwealth v. Melendez-Negron, 123
       A.3d 1087 (Pa. Super. 2014)?

Appellant’s Brief at 4.

       In sum, Appellant argues:

       In the matter sub judice, the plea negotiations that resulted in the
       June 2013 guilty plea were fatally flawed from the beginning. [The
       Superior Court] specifically remanded this matter to determine
       whether Appellant’s guilty plea was unlawfully induced due to an
       unconstitutional mandatory minimum sentencing scheme. As a
       result, the [trial] court was required to provide a full and complete
       colloquy in accordance with Pa.R.Crim.P. 590 to demonstrate that
       Appellant knowingly, intelligently, and voluntarily entered into the
       guilty plea and that it was not unlawfully induced. These issues
       were simply never addressed during the February 2, 2017
____________________________________________


2  Appellant filed a pro se post-sentence motion requesting reconsideration of
his sentence. Upon review of the record, Appellant was still represented by
counsel and it does not appear that the trial court ruled upon Appellant’s pro
se post-sentence motion. It should be noted that in the months following
Appellant’s resentencing, Appellant submitted numerous pro se filings with the
trial court and counsel for Appellant filed a petition to withdraw. The trial
court granted counsel’s request to withdraw on May 18, 2017. On June 27,
2017, Appellant filed a pro se notice of appeal nunc pro tunc. On July 14,
2017, the trial court granted relief, appointed Edward M. Galang, Esquire to
represent Appellant on appeal, and directed Attorney Galang to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Counsel complied on August 14, 2017. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on August 17, 2017.

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      proceeding. [The Superior Court] specifically remanded this
      matter so that a proper record could be developed related to the
      issues set forth in Commonwealth v. Melendez-Negron, 123
      A.3d 1087 (Pa. Super. 2015). The record developed during the
      February 2, 2017 sentencing hearing is deficient in this regard.
      As a result, Appellant maintains that the February 2, 2017 order
      must be vacated.

Appellant’s Brief at 21.   As a result, Appellant claims that he is entitled to

withdraw his guilty plea. Id. at 13.

      On this issue, the trial court concluded:

      There are no purposes for holding a new colloquy other than giving
      [Appellant] an opportunity to either withdraw his plea or use the
      prospect of doing so as a way of negotiating an even-more lenient
      sentence from the Commonwealth.

                           *            *          *

      [Appellant] negotiated a new sentence and testified in court under
      oath that entry of the new sentence would resolve his PCRA
      petition. The Commonwealth was in agreement with [Appellant].
      After the new sentence was imposed, neither the Commonwealth
      nor [Appellant], in his numerous pro se applications, asked for the
      guilty plea to be vacated. [Appellant] gave up his post-conviction
      claim that his guilty plea was not knowing, voluntary and
      intelligent at the PCRA hearing by accepting the new negotiated
      sentence below the mitigated range of the sentencing guidelines.

Trial Court Opinion, 8/17/2017, at 14.

      We agree with the trial court’s assessment. In this case, Appellant’s

current claim is outside the scope of our remand order. Our Supreme Court

has previously decided:

      Following a full and final decision by a PCRA court on a PCRA
      petition, that court no longer has jurisdiction to make any
      determinations related to that petition unless, following appeal,
      the appellate court remands the case for further proceedings in
      the lower court. In such circumstances, the PCRA court may only


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      act in accordance with the dictates of the remand order. The PCRA
      court does not have the authority or the discretion to permit a
      petitioner to raise new claims outside the scope of the remand
      order and to treat those new claims as an amendment to an
      adjudicated PCRA petition.

Commonwealth v. Sepulveda, 144 A.3d 1270, 1280 (Pa. 2016) (footnotes

omitted); see also Commonwealth v. Lawson, 789 A.2d 252, 253-254 (Pa.

Super. 2001) (“where a case is remanded to resolve a limited issue, only

matters related to the issue on remand may be appealed”).

      Here, a prior panel of this Court remanded this case to determine

whether    a    mandatory   minimum    sentencing   scheme,   later   declared

unconstitutional under Alleyne, influenced Appellant’s decision to plead

guilty.   We presented Appellant with two choices on how to proceed upon

remand. He could show: 1) “[p]roof of [] prejudice stemming from counsel’s

failure to advise him properly [regarding Alleyne, which] would entitle

Appellant to a new sentencing hearing” or, 2) that he “would have withdrawn

his guilty plea altogether had counsel properly advised him of Alleyne and

the effect it could have on his sentencing would entitle him to withdraw his

guilty plea.”   Patterson, 143 A.3d at 399.   Thus, the recent remand was

limited solely to an examination of the effect that mandatory minimum

sentences had on Appellant’s decision to accept the sentence he negotiated

with the Commonwealth or his election to      plead guilty.   However, once




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Appellant agreed to a newly negotiated sentence,3 one of the two options

given on remand, he foreclosed his ability to withdraw his plea. If he decided

to seek withdrawal of his guilty plea before the trial court, Appellant was

entitled to do so. However, he needed to develop upon remand that his plea

was invalid. Appellant, however, cannot now claim that he wants to withdraw

his plea for the first time on appeal. Moreover, if Appellant believed that the

guilty plea colloquy was “fatally flawed from the beginning,” he was required

to raise that precise issue in his original PCRA petition, which he did not do.

As such, Appellant has waived his current claim.

       Regardless, Appellant’s assertion is otherwise without merit.          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

____________________________________________


3 We note that, “where a sentence of specific duration has been made part of
a plea bargain, it would clearly make a sham of the negotiated plea process
for courts to allow defendants to later challenge their sentence; this would, in
effect, give defendants a second bite at the sentencing process.”
Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994). As the
record reflects, Appellant agreed to a specific sentence on remand; the
Commonwealth recited the agreement and both Appellant and his counsel
confirmed the agreement. The court then performed a colloquy to ensure
Appellant understood the proposed sentence.          N.T., 2/2/2017, at 3-6.
Appellant stated that it was his intention to accept the agreement to amend
his sentence and resolve the matter. Id. at 4-5. It is meritless for Appellant
to now claim he should be allowed to withdraw his plea.

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     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.
     Inter alia, the law imposes a stricter standard for post-sentence
     withdrawal motions in order to balance the tension between the
     individual's fundamental right to a trial and the need for finality in
     the proceedings.

     Additionally, a defendant is bound by the statements which he
     makes during his plea colloquy. Therefore, a defendant may not
     assert grounds for withdrawing the plea that contradict
     statements made when he pled guilty, and he may not recant the
     representations he made in court when he entered his guilty plea.
     Moreover, the law does not require that a defendant be pleased
     with the outcome of his decision to plead guilty. The law requires
     only that a defendant's decision to plead guilty be made
     knowingly, voluntarily, and intelligently.

                          *            *            *

     This Court has established six topics that must be covered by a
     valid plea colloquy: 1) the nature of the charges, 2) the factual
     basis for the plea, 3) the right to a jury trial, 4) the presumption
     of innocence, 5) the sentencing ranges, and 6) the plea court's
     power to deviate from any recommended sentence.

Commonwealth v. Jabbie, 2018 WL 6332328, at *4–5 (Pa. Super.

December 5, 2018).

     As previously mentioned, Appellant’s original guilty plea hearing was

bifurcated. The trial court accepted Appellant’s guilty plea in June of 2013.

However, because there was no negotiated sentencing agreement, and the



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sentence was open for the court to decide, the trial court held sentencing later.

Thereafter, in the prior appeal from the denial of PCRA relief, this Court

determined that Appellant presented a colorable claim that his guilty plea was

potentially influenced by the implication of an unconstitutional mandatory

minimum sentence. In essence, our prior decision only addressed whether

Appellant’s guilty plea was defective with regard to the permissible sentencing

ranges Appellant potentially faced and the court’s power to deviate from any

recommended sentence, the fifth and sixth inquiries as set forth above.

Importantly, however, we did not vacate Appellant’s judgment of sentence.

Thus, we may look at the prior plea proceedings in examining the totality of

the circumstances surrounding the plea. At the original guilty plea hearing,

Appellant acknowledged that he understood the nature of the charges, the

factual basis for the plea, his right to a jury trial, and his presumption of

innocence. See N.T., 6/10/2013, at 5-14. Those statements bind Appellant.

Furthermore, at no time has Appellant presented the trial court with a

challenge that its colloquy was defective with regard to these four required

inquiries. There was simply no reason for the trial court to colloquy Appellant

again on areas that were already covered, accepted, and remained

unchallenged.      Apart from the mandatory minimum sentencing issue,

Appellant   does    not   identify   anything   he   had   questions   about   or

misunderstood, he simply claims he was entitled to a new plea colloquy.

However, the only issue for resolution by the court on remand was

resentencing.      Finally, it is clear that before Appellant accepted his new

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sentence, he was fully informed and knew that the Commonwealth could not

seek a mandatory minimum sentence. Therefore, at the time he agreed to

enter his newly negotiated sentence, Appellant already received a plea

colloquy (with many parts unchallenged) and litigated an Alleyne claim.

Hence, based upon a totality of the circumstances, Appellant has not identified

grounds for finding his plea was unknowing, unintelligent, or involuntary in

order to establish a manifest injustice permitting him to withdraw his guilty

plea. Accordingly, Appellant’s current appellate challenge to the plea colloquy

is waived, but otherwise without merit.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/19




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