J-S67005-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
WALTER D. MATTHEWS,                        :
                                           :
                   Appellant               : No. 1977 WDA 2013

         Appeal from the Judgment of Sentence September 18, 2012,
                  Court of Common Pleas, Allegheny County,
              Criminal Division at No. CP-02-CR-0001726-2012

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED NOVEMBER 10, 2014

       Walter D. Matthews (“Matthews”) appeals from the judgment of

sentence entered on September 18, 2012 in the Court of Common Pleas of

Allegheny County, Criminal Division, following his guilty plea to one count of

receiving stolen property.1 We affirm.

       Because Matthews challenges the validity of his guilty plea, a recitation

of the facts underlying his conviction is unnecessary.            The relevant

procedural history of this case is as follows. On June 19, 2012, Matthews

pled guilty to one count of receiving stolen property. On that date, the trial

court deferred sentencing so that it could obtain a pre-sentence report. On

August 30, 2012, Matthews arrived late for his sentencing hearing.

Matthews received a drug screen and tested positive for cocaine. The trial



1
    18 Pa.C.S.A. § 3925(a).


*Former Justice specially assigned to the Superior Court.
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court revoked his bond and sent him to the Allegheny County Jail, delaying

his sentencing until September 2012.        On September 18, 2012, the trial

court sentenced Matthews to 15 to 60 months of incarceration.

        On September 25, 2012, Matthews filed a post-sentence motion to

withdraw his guilty plea. On January 16, 2013, Matthews filed an amended

motion to withdraw guilty plea, which the trial court denied on January 18,

2013.     Matthews filed no notice of appeal from the September 18, 2012

judgment of sentence.

        On February 1, 2013, Matthews filed, pro se, a petition pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. On February

7, 2013, the trial court appointed counsel to represent Matthews and

afforded counsel time to file an amended PCRA petition. On July 2, 2013,2

Matthews filed an amended PCRA petition in which he claimed that counsel

was ineffective for failing to object to a sentence not in compliance with a

plea agreement and for failing to preserve his appellate rights.     Amended

PCRA Petition, 7/2/13, ¶¶ 10-11. On July 9, 2013, the trial court entered an

order reinstating Matthews’s post-sentence and appellate rights.

        On July 18, 2013, Matthews filed another post-sentence motion

seeking permission to withdraw his guilty plea, which the trial court denied

on November 14, 2013. On December 13, 2013, Matthews filed a notice of



2
  The trial court granted Matthews three extensions, on March 27, 2013,
May 7, 2013, and June 13, 2013, to file an amended PCRA petition.


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appeal. On December 17, 2013, the trial court ordered Matthews to file a

concise statement of the errors complained of on appeal pursuant to Rule

1925(b) of the Pennsylvania Rules of Appellate Procedure.      On January 6,

2014, Matthews filed a timely Rule 1925(b) statement.

      On appeal, Matthews raises the following issues for review:

            1. Were the circumstances surrounding the entry of
            [Matthews]’s plea ambiguous or confusing enough to
            render [his] plea unknowing and/or involuntary
            where [Matthews] was either 1) led to believe that
            he would receive a sentence of probation if he
            tendered a plea of guilty and began to make
            restitution payments prior to August 30, 2012, the
            originally scheduled date of sentencing, or 2),
            suffered legitimate confusion as to the existence of
            such a promise?

            2. Did the sentencing court err in failing to provide
            [Matthews] an opportunity to withdraw his plea pre-
            sentence when the court became disinclined to
            sentence [him] in accordance with an understanding
            created when [he] withdrew his request for a jury
            trial and instead entered a plea of guilty[?]

Matthews’s Brief at 3.

      Our Court has held that “[t]here is no absolute right to withdraw a

guilty plea, and the decision as to whether to allow a defendant to do so is a

matter within the sound discretion of the trial court.”   Commonwealth v.

Pollard, 832 A.2d 517, 522 (Pa. Super. 2003).        “A trial court’s decision

regarding whether to permit a guilty plea to be withdrawn should not be

upset absent an abuse of discretion.” Commonwealth v. Pardo, 35 A.3d

1222, 1227 (Pa. Super. 2011). “[P]ost-sentence motions for withdrawal are



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subject to higher scrutiny since courts strive to discourage entry of guilty

pleas as sentence-testing devices.” Commonwealth v. Broaden, 980 A.2d

124, 129 (Pa. Super. 2009) (quotations omitted). Importantly, “a defendant

who attempts to withdraw a guilty plea after sentencing must demonstrate

prejudice on the order of manifest injustice before withdrawal is justified.”

Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013), appeal

denied, 87 A.3d 319 (Pa. 2014). Our Court has held that “[a] plea rises to

the level of manifest injustice when it is entered into involuntarily,

unknowingly,     or    unintelligently.”     Id.   (quoting    Commonwealth   v.

Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002)).

      Prior to accepting a guilty plea, a trial court must determine on the

record whether it is voluntarily, knowingly, and intelligently tendered. See

Pa.R.Crim.P. 590(a)(3).        In order to ensure a voluntary, knowing, and

intelligent plea, our Supreme Court requires that a trial court, at a minimum,

ask the following questions during a plea colloquy:

            1)        Does the defendant understand the nature of
                      the charges to which he is pleading guilty?

            2)        Is there a factual basis for the plea?

            3)        Does the defendant understand that he has the
                      right to a trial by jury?

            4)        Does the defendant understand that he is
                      presumed innocent until he is found guilty?




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           5)    Is the defendant aware of the permissible
                 ranges of sentences and/or fines for the
                 offenses charged?

           6)    Is the defendant aware that the judge is not
                 bound by the terms of any plea agreement
                 tendered unless the judge accepts such
                 agreement?

Commonwealth v. Moser, 921 A.2d 526, 529 (Pa. Super. 2007).

Additionally, “the examination does not have to be solely oral. Nothing

precludes the use of a written colloquy that is read, completed, and signed

by the defendant, made part of the record, and supplemented by some on-

the-record oral examination.” Id. “Our law presumes that a defendant who

enters a guilty plea was aware of what he was doing,” and “[h]e bears the

burden of proving otherwise.” Pollard, 832 A.2d at 523 (citation omitted).

In assessing the adequacy of a guilty plea colloquy and the voluntariness of

the subsequent plea, “the court must examine the totality of circumstances

surrounding the plea.” Broaden, 980 A.2d at 129.

     For his first issue on appeal, Matthews argues that he did not

voluntarily, knowingly, and intelligently tender his guilty plea.   Matthews

Brief at 7-12. Matthews claims that there was an off-the-record agreement

in place where he would receive a sentence of time served and probation in

exchange for his guilty plea. Id. Matthews refers to the following events in

support of his assertion that there was an off-the-record plea agreement.

First, at the plea hearing, Matthews initially requested a jury trial, but




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following an off-the-record conversation with his attorney, decided to plead

guilty.   Id. at 8.   Matthews contends that “it stands to reason … that

something was said to [him] off-the-record to prompt the change of mind.”

Id.   Second, at the plea hearing, there was a lengthy discussion involving

Matthews’s concern that he would not be allowed to live at the St. Joseph

House of Hospitality (“St. Joseph House”) if he had an ankle bracelet. Id. at

9. The trial court also told Matthews that it wanted him to provide proof that

he was abiding by the rules of that facility, that he was compliant with his

parole agent, and that he had begun paying restitution.       Id.   Matthews

argues that this discussion would have been unnecessary if there had been

no agreement in place maintaining Matthews’s current living arrangements.

Id. Third, at the sentencing hearing, Matthews’s attorney made remarks to

the effect that Matthews had received a plea offer for time served and

probation. Id. at 9-11. Based on these events, Matthews maintains that he

received an off-the-record plea offer for a sentence of time served and

probation, or in the alternative, the circumstances demonstrate too much

confusion on his part for him to have tendered a voluntary, knowing, and

intelligent guilty plea. Id. at 7-12.

      We conclude that the trial court did not err in finding that Matthews

voluntarily, knowingly, and intelligently tendered his guilty plea. During the

guilty plea colloquy, the trial confirmed with Matthews that he understood

the nature of the charges to which he was pleading guilty, that there was a



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factual basis for the plea, and that Matthews was aware of the permissible

ranges of sentences and/or fines for the offense charged. N.T., 6/19/12, at

7-8.    Additionally, in the written colloquy, Matthews indicated that he

understood that he had the right to a trial by jury, that he was innocent until

proven guilty, and that the judge was not bound by the terms of any plea

agreement tendered unless the judge accepted such an agreement. Guilty

Plea Explanation of Defendant’s Rights, 6/19/12, ¶¶ 9, 17, 58.      “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.”

Pollard, 832 A.2d at 523.       Thus, the record supports the trial court’s

conclusion that Matthews voluntarily, knowingly, and intelligently tendered

his guilty plea. See Moser, 921 A.2d at 529.

       Moreover, our review of the certified record on appeal reveals no

support for Matthews’s claims that he received an off-the-record plea

agreement for a sentence of time served and probation.        During the oral

colloquy, Matthews stated that no promises had been made to him in

connection with his guilty plea. N.T., 6/19/12, at 6. In the written colloquy,

Matthews specifically answered “no” to the question of whether there was a

plea bargain in this case.   Guilty Plea Explanation of Defendant’s Rights,

6/19/12, ¶ 60.




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     Furthermore, although Matthews did initially request a jury trial and

shortly thereafter decide to plead guilty, there is no indication in the plea

hearing transcripts that there was an off-the-record plea offer made

prompting him to plead guilty. See N.T., 6/19/12, at 2-4. Because we do

not know what Matthews’s attorney said to him during the off-the-record

discussion prior to his decision to plead guilty, we cannot say what prompted

this course of action. Likewise, while there was a discussion during the plea

hearing regarding the St. Joseph House, restitution, and Matthews’s

compliance with parole, there is no evidence in the plea hearing transcripts

that this conversation occurred because there was an off-the-record plea

agreement in which Matthews would receive a sentence of time served and

probation. See id. at 9-15.

     Additionally, we do not find the above-referenced exchange from

Matthews’s sentencing hearing to indicate that a plea agreement existed in

this case. This exchange occurred as follows:

           [Defense Counsel]: Your Honor, he was offered time
           served and probation.

           The Court: Well, he chose not to accept that.

           [Defense Counsel]: No, on August 30th. I know it’s
           very confusing because he’s been in front of you so
           many times. Obviously and justifiably the court was
           not happy with him coming in on August 30th for his
           sentence and being high on -- well, if you have
           cocaine in your system -- excuse my terminology Mr.
           Matthews, but that’s not exactly being clearheaded,
           right?



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          [Matthews]: I was clearheaded.

          The Court: Was there a plea agreement? Was that
          the case?

          [Defense Counsel]: For time served and probation it
          was.

          The Court: Because I have a note here that there
          was a plea and we did order a pre-sentence report.

          [The Prosecutor]: Unfortunately, Your Honor, I was
          not here for the plea. I’m filling in for my partner. He
          indicated to me that this was a general plea.

          The Court: This was a general plea, it was noted
          here -- I’m speaking now Mr. Matthews – it was
          noted here that he had a five prior record score, was
          living at Saint Joe’s on parole and giving clean
          screens. He had a three in the mitigated range, but I
          ordered a pre-sentence report so [defense counsel]
          could argue for me to depart from that and for him
          to attempt to make some restitution in order for me
          to consider a below mitigated range sentence.

          [Defense Counsel]: Your Honor --

          The Court: Unfortunately, there was no plea
          agreement in this case and his behavior since that
          time, in fact, convinced me that the mitigated range
          sentence is not appropriate, that a sentence in the
          aggravated range would be more appropriate.

                               *     *     *

          [Defense Counsel]: Your Honor, for the matter -- for
          the record, on June 19th of 2012, when the plea was
          taken, the Court’s notes are absolutely correct, Mr.
          Matthews signed my file, but I had asked for a pre-
          sentence report so that we had additional time,
          everything you said is correct, and that as noted on
          my file request time served and probation. Mr.



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            Matthews signed that back on June 19th, and to pay
            off the restitution as much as he could to show a
            good-faith effort. When he came in on August 30th
            for sentencing, we had the problem then of being
            late for court. He was urine screened. He tested
            positive. So the Judge is correct.

N.T., 9/18/12, at 11-14.

      Matthews asserts that because both he and his attorney attempted to

interject while the Judge was speaking, this exchange is proof that they

believed a plea agreement was in place. Matthews’s Brief at 10. Matthews

also claims that his attorney’s confirmation of the trial court’s understanding

of the circumstances surrounding his guilty plea is incorrect because his

attorney did not request a pre-sentence report, as she claims, but rather the

trial court ordered the report. Id. at 11; N.T., 6/19/12, at 9-14. At most,

this passage establishes that defense counsel was going to request time

served and probation after the completion of a pre-sentence report. It does

not support his contention that he received an off-the-record plea agreement

prompting him to plead guilty.

      For his next issue on appeal, Matthews claims that the trial court erred

when it did not provide an opportunity to withdraw his guilty plea pre-

sentence when it decided not to sentence him in accordance with an off-the-

record plea deal that he agreed to prior to pleading guilty. Matthews’s Brief

at 13-14.   Matthews cites Commonwealth v. Porreca, 595 A.2d 23 (Pa.

1991) for the proposition that when a “court is unwilling to accept an




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agreement reached by the defendant and the Commonwealth[,] the

defendant should be given the opportunity to withdraw the plea before

sentence is imposed.” Matthews’s Brief at 13. However, our Supreme Court

in Porreca held that

            when a written plea agreement includes specific
            language that the defendant knowingly waives his
            right to withdraw his plea if the trial judge should not
            concur in the recommended sentence, the defendant
            is not entitled to withdraw his plea; but if a plea
            agreement is silent on whether the defendant may
            withdraw the plea in the event that the trial court
            does not concur in the recommended sentence, the
            defendant shall be entitled to withdraw his plea[.]

Porreca, 595 A.2d at 26. Because we have already determined that there

is no evidence of record to support Matthews’s assertion that there was an

off-the-record plea agreement in this case, Porreca does not apply here.

Accordingly, Matthews is not entitled to any relief on this issue.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/10/2014




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