J-S62041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

DEVON SMITH

                            Appellant                     No. 352 MDA 2016


            Appeal from the Judgment of Sentence October 15, 2015
            In the Court of Common Pleas of Northumberland County
               Criminal Division at No(s): CP-49-CR-0001279-2014


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED OCTOBER 06, 2016

        Appellant, Devon Smith, appeals from the judgment of sentence

entered in the Northumberland Court of Common Pleas, following his open

guilty plea to aggravated assault and aggravated harassment by prisoner.1

We affirm.

        We draw the relevant facts and procedural history of this case from

the certified record as follows. On or about July 15, 2014, Appellant kicked

a uniformed maintenance worker, while in the performance of his duty, in

the lower leg and knowingly spat on a corrections officer. As a result of this

incident,    the   Commonwealth         charged   Appellant   with   one   count   of

aggravated assault and one count of aggravated harassment by prisoner.
____________________________________________


1
    18 Pa.C.S.A. § 2702(a)(3) and 18 Pa.C.S.A. § 2703.1, respectively.
J-S62041-16


Appellant was already serving an aggregate sentence of one (1) year and six

(6) months to seventeen (17) years of incarceration on unrelated offenses,

with a minimum sentence that expired on September 19, 2011, and a

maximum sentence that is set to expire on December 21, 2021. Appellant

entered into an open plea agreement with the Commonwealth; the

Commonwealth agreed to recommend the two new sentences to run

concurrently to each other, and in the standard range, with the remaining

terms of the sentence left to the court’s discretion.

      On October 15, 2015, Appellant pled guilty to both new charges, after

the court conducted a colloquy on the record. The court sentenced Appellant

on the same day to two (2) to four (4) years’ imprisonment on each charge

to run concurrently with each other, but consecutive to the sentence he was

already serving on his unrelated crimes.       Appellant timely filed a post-

sentence motion on October 16, 2015, alleging he believed the new

sentences would run concurrently with the unrelated state sentence he was

also serving, and asked to withdraw his guilty plea as unintelligent or

unknowing.    On February 18, 2016, the court denied Appellant’s post-

sentence motion by operation of law.        Appellant timely filed a notice of

appeal on February 26, 2016.         On March 1, 2016, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed.

      Appellant raises the following issue for our review:


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J-S62041-16


         WHETHER THE COURT ERRED IN DENYING [APPELLANT’S]
         MOTION TO WITHDRAW HIS PLEA ON THE BASIS THAT IT
         WAS NOT INTELLIGENTLY OR KNOWINGLY ENTERED
         WHEN IT WAS HIS UNDERSTANDING THAT HIS
         SENTENCES WOULD BE CONCURRENT TO THE CURRENT
         STATE SENTENCE HE WAS SERVING.

(Appellant’s Brief at 6).

      Appellant argues he entered into this plea agreement with a different

understanding as to his sentence, which establishes a manifest injustice

allowing him to withdraw his guilty plea. Through communications with his

counsel, Appellant believed he would serve his new sentences concurrently

with the state sentence he was already serving. Appellant reasons his plea

was flawed because the court sentenced him to serve his new sentences

consecutively to the one he was already serving, which cause his plea to be

unknowing or unintelligent.          Appellant concludes we must vacate his

sentences and allow him to withdraw his guilty plea. We disagree.

      A valid guilty plea must be knowingly, voluntarily and intelligently

entered. Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super. 2003). The

Pennsylvania Rules of Criminal Procedure mandate that 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 (Pa.Super. 2002).

Specifically,   the   court   must    affirmatively   demonstrate   a   defendant

understands: (1) the nature of the charges to which he is pleading guilty;

(2) the factual basis for the plea; (3) his right to trial by jury; (4) the


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J-S62041-16


presumption of innocence; (5) the permissible ranges of sentences and fines

possible; and (6) that the judge is not bound by the terms of the agreement

unless he accepts the agreement. Commonwealth v. Watson, 835 A.2d

786 (Pa.Super. 2003).    This 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 bears the burden of proving otherwise.         Pollard, supra.    A

defendant who decides to plead guilty is bound by the statements he makes

while under oath, “and he may not later assert grounds for withdrawing the

plea which contradict the statements he made at his plea colloquy.” Id. at

523.

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Paige Rosini,

we conclude Appellant’s issue merits no relief.      The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed April 15, 2016, at 2-4) (finding: plea

agreement provided Appellant’s sentences on two new charges would run

concurrently to each other; agreement made no mention of whether new

sentences would run concurrently to any other sentences Appellant was

already serving; even if Appellant contemplated possibility of all sentences


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J-S62041-16


running concurrently, that concept was not part of plea agreement;

therefore, Appellant failed to show plea constituted manifest injustice). We

agree.   At Appellant’s plea hearing, the court conducted an adequate plea

colloquy and determined Appellant understood the nature of the charges to

which he is pleading guilty; the factual basis for the plea; his right to trial by

jury; the presumption of innocence; the permissible ranges of sentences and

fines possible; and that the judge was not bound by the terms of the

agreement unless she accepts it.          Further, the Commonwealth stated on

record   the   exact   terms   of   the    plea   agreement,   which   included   a

recommendation that the sentences on both new counts would run

concurrently to each other, be in the standard range, and the remaining

terms of the sentence would be left to the discretion of the court. We see no

reason to disturb the court’s decision to deny Appellant the relief he

requested. Accordingly, we affirm on the basis of the trial court opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2016




                                          -5-
                                                                                    Circulated 09/13/2016 04:35 PM




                             IN THE COURT OF COMMON PLEAS
                             OF NORTHUMBERLAND COUNTY, PA


COMMONWEAL TH of PENNSYLVANIA,
                                                               CRIMINAL LAW - DIVISION
v.
                                                               CR-2014-1279
DEVON SMITH,
           Defendant.
                          OPINION PURSUANT TO PA.R.A.P. 1925(a)
Factual and Procedural Background

       The Defendant in the above-captioned case pied guilty to aggravated assault and
aggravated harassment by a prisoner on October 15th 2015. At that hearing the Court was
advised of the plea agreement by the Assistant District Attorney.

               "Prior to coming before the Court the parties have reached a plea
               agreement that we would propose to the Court that the defendant ~d
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               enter a guilty plea on each of the two counts pending in this case. fiiij;
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               Commonwealth would recommend that both counts run <:oncurrentl~tQ:
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               each other in the standard range with the remaining terms of the
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               sentence being at the discretion of the Court."
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       At sentencing, the Court imposed the following sentence:

"Then I will sentence you as follows on the charge of aggravated assault filed as Count Number
1 to CR - 2014- 1279: To pay the costs of prosecution, pay Act 35 supervision fees, and a
period of incarceration in a state correctional institution of 2 to 4 years to run consecutive to the
existing sentences being served.
Then on the charge of aggravated harassment by a prisoner filed as Count Number 2 to the
same number and term: To pay the costs of prosecution, pay all Act 35 supervision fees, and a
period of incarceration in a state correctional institution of 2 to 4 years to run concurrent to
Count Number 1."

       The Defendant filed a post-sentence motion on October 16th 2015 alleging error in that
the Court failed to run the sentence on CR - 2014 - 1279 concurrent to "any other state
sentence he is currently serving". In the moti~, the Defendant indicates his guilty plea was not
intelligently or knowingly entered.
       The Defendant's motion was denied by operation of law and this appeal followed.

Issues Presented

       The Defendant claims that he should be permitted to withdraw his guilty plea in light of
not having his sentence under CR-2014-1279            run concurrentto other sentences he was
serving.

Rule of law

           In order to permit the withdrawal of a guilty plea after sentence has been entered, there
must be a showing of prejudice that results in a manifest injustice to the defendant. See
Commonwealth v. Vance, 546 A.2d 632, 635 (Pa. Super. 1988); Commownealth v. Schultz, 477
A.2d 1328 (Pa. 1984); Commonwealth v. Muller, 482 A.2d 1307, 1310 (Pa. Super. 1984). To
prove manifest injustice, a criminal defendant must show that his plea was involuntary or was
entered without knowledge of the charge. See Commonwealth            v. Fenton,   566 A.2d 260, 262
(Pa. Super. 1989); Commonwealth v. Jones, 566 A.2d 893, 895 (Pa. Super. 1989). Once a
defendant enters a guilty plea, it is presumed he was aware of what he was doing, the burden of
proving the contrary, understandably rests with him. See Commonwealth v. West, 485 A.2d
490, 493 (Pa. Super. 1984); Commonwealth v. Phillips, 542 A.2d 575, 576 (Pa. Super. 1988).

           Post-sentencing attempts to withdraw a guilty plea must sustain this more substantial
burden of demonstrating manifest injustice because of the recognition that a plea withdrawal
can be used as a sentence-testing device. See Commonwealth            v.   Shaffer, 446 A.2d 591, 593
(Pa. 1982); Commonwealth v. Starr, 301 A.2d 592, 594 (Pa. 1973). A disappointed expectation
regarding a sentence entered does not constitute grounds for withdrawing his guilty plea. See
Commonwealth v. Owens, 467 A.2d 1159, 1163 (Pa. Super. 1983).

           Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee
assurance that guilty pleas are voluntarily and understandingly tendered. SeePa.R.Crim.P; 5CJO.
The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is
obliged to make a specific determination after extensive colloquy on the record that a plea is
voluntarily and understandingly tendered. A guilty plea colloquy must include inquiry as to
whether (1) the defendant understood the nature of the charge to which he is pleading guilty; (2)
there is a factual basis for the plea; (3) the defendant understands that he has the right to a jury
trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the
defendant is aware as to the permissible range of sentences; and (6) the defendant is aware
that the judge is not bound by the terms of any plea agreement unless he accepts such
agreement. See Commonwealth v. Willis, 369 A.2d 1189 (Pa. 1977). Inquiry into these six
areas is mandatory in every guilty plea colloquy. See Commonwealth v. Glaze, 531 A.2d 796
(Pa. Super. 1987); Commonwealth v. Moore, 528 A.2d 1364 (Pa. Super. 1987); and
Commonwealth        v. Alston,   564 A.2d 235, 237 (Pa. Super. 1989).
        Under Pa.R.Crim.P.5~oA<;) if the judge is satisfied that the plea is understandingly and
voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in
the plea agreement, he shall permit the defendant to withdraw his plea.
        ln interpreting this rule, several Superior Court decisions held that
"a sentence recommendation          is among the 'terms' of a plea bargain, and the Rule provides that
if the judge cannot concur in the bargain, he must afford the defendant an opportunity to
withdraw." Commonwealth v. Sutherland, 340 A.2d 582, 584-585 (Pa. Super.
1975), Commonwealth v. Fazenbaker. 375 A.2d 175 (Pa. Super. 1977). In Commonwealth v.
Bennett, 517 A.2d 1248, 1251-1252 (Pa. 1986), the Supreme Court, by dictum, interpreted Rule
[SCf   oj     in a similar manner. This interpretation of the rule was "premised on the idea that it
would be unfair to accept a guilty plea which was induced in part by a recommendation of a
lenient sentence and then impose a greater sentence." Sutherland, 340 A.2d at 584.
        More recent decisions, however, have made it quite clear that plea agreements by which
the Commonwealth has agreed to make nonbinding sentencing recommendations will not give
rise to a per se right to withdraw the plea if the sentencing court does not accept the
recommendation. Thus, in Commonwealth v. Osteen, 552 A.2d 1124 (Pa. Super. 1989),
the sentencing court's rejection of the prosecution's expressly nonbinding recommendation of
probation and the imposition of a sentence of imprisonment was held not to violate the terms of
the plea agreement. The Court reasoned as follows:
        The ... plea bargain created no expectation whatsoever as to
        what sentence would be imposed. By its clear and fully explained terms,
        the plea bargain was expressly limited to what sentence the prosecutor would·
        recommend, not what sentence the court would impose. Thus, the prosecutor
        completely fulfilled his part of the plea bargain at sentencing by offering the
            recommendation as agreed .... To have permitted appellantto withdraw his no
            contest plea based upon the trial court's rejection of the prosecution's
            recommendation, would have ignored the clear limits of the plea agreement
            and would have permitted precisely the kind of "sentence-testing" which our
            Supreme Court expressly condemned.
Legal Reasoning:

      The plea agreement, as recited by the Assistant District Attorney, provided that the
Defendant's sentences on the two charges would run concurrent to each other. Absolutely no
mention is made of running the sentences imposed for CR-2014-1279, concurrent to any
other sentences the Defendant was serving. This may have been contemplated by the
Defendant, but it was not made a term of the plea agreement.

      As such, there is no proof provided of a manifest injustice. The Defendant's appeal
should be dismissed.




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