Com. v. Reynolds, E., III ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERNEST WILLIAM REYNOLDS, III :
:
Appellant : No. 860 MDA 2020
Appeal from the Judgment of Sentence Entered March 20, 2020
In the Court of Common Pleas of Union County Criminal Division at
No(s): CP-60-CR-0000043-2019
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 30, 2021
Ernest William Reynolds, III, appeals from the judgment of sentence,
entered in the Court of Common Pleas of Union County, after pleading guilty
to driving under the influence of a controlled substance (DUI—controlled
substance),1 unauthorized use of a motor vehicle,2 and possession of drug
paraphernalia.3 Counsel has filed a petition to withdraw on appeal pursuant
to Anders v. California, 386 U.S. 738 (1967). Upon review, we affirm
Reynolds’ judgment of sentence and grant counsel’s petition to withdraw.
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1 75 Pa.C.S.A. § 3802(d)(2).
2 18 Pa.C.S.A. § 3928.
3 35 P.S. § 780-113(a)(32).
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On December 10, 2019, Reynolds proceeded to a jury trial at criminal
docket number 16-2019 where he was charged with theft by unlawful taking,4
unauthorized use of a motor vehicle, and criminal conspiracy.5 At the time of
trial, Reynolds had two other criminal cases pending against him related to
two separate incidents: at docket number 42-2019, Reynolds was charged
with possession of a controlled substance6 and possession of drug
paraphernalia; at docket number 43-2019, the current case on appeal,
Reynolds was charged with DUI—controlled substance, driving under
suspension,7 and possession of drug paraphernalia.8
Partway through the trial at docket number 16-2019, during the
testimony of a Commonwealth witness, Reynolds elected to enter a negotiated
guilty plea in that case as well as the two other criminal cases pending against
him. See N.T. Partial Jury Trial and Plea Hearing, 12/10/19, at 50-54. During
a brief recess where the jury was excused, Reynolds, his counsel, and the
district attorney discussed a potential plea agreement on Reynolds’ three
cases. Id. at 54. In order to satisfy the court that there was a factual basis
for Reynolds’ plea, the district attorney stated the facts underlying the charges
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4 18 Pa.C.S.A. § 3903(a.1).
5 18 Pa.C.S.A. § 903.
6 35 P.S. § 780-113(a)(16).
7 75 Pa.C.S.A. § 1543.
8 Following a preliminary hearing at both dockets on February 19, 2019, all
charges were held for court.
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of DUI—controlled substance, unauthorized use of a motor vehicle, and
possession of drug paraphernalia—one count at each docket number. Id. at
63-65. Reynolds stated that he heard the facts and admitted he was guilty of
each of these offenses. Id. The court conducted an oral colloquy on the
record and also received a written plea colloquy form signed by Reynolds, on
which he expressly wrote “I admit guilt” in response to the question, “Why do
you wish to plead guilty?” See id. at 65-68; Guilty Plea Colloquy Form,
12/10/19, at 6. Reynolds averred that nobody had pressured, threatened, or
promised him anything to induce his guilty plea. See N.T. Partial Jury Trial
and Plea Hearing, 12/10/19, at 65-68.
At his sentencing hearing on March 20, 2020, Reynolds, through
counsel, requested a continuance so that he could file a written motion to
withdraw his pleas in all three of his criminal cases. See N.T. Sentencing,
3/20/20, at 2. Counsel indicated that, with respect to the DUI charge,
Reynolds is “averring his innocence.” Id. The sentencing court denied the
request for a continuance, noting that “[no] miscarriage of justice [was]
apparent from the record[.] . . . [Reynolds] negotiated this plea himself and
. . . [his] rights to file a motion for leave to withdraw his plea are preserved
through the vehicle of a post-sentence motion.” Id. at 3. See also
Commonwealth v. Norton, 201 A.3d 112, 120 (Pa. 2019) (court not
required to grant presentence motion to withdraw plea based upon bare
assertions of innocence; proper inquiry is whether defendant made colorable
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demonstration that permitting plea withdrawal would promote fairness and
justice).
That same day, pursuant to the global plea agreement, Reynolds was
sentenced as follows: one to five years’ imprisonment plus fines of $1,510 for
DUI—controlled substance;9 one to twenty-three months’ imprisonment for
unauthorized use of a motor vehicle; and twelve months of probation for
possession of drug paraphernalia. These sentences were ordered to run
concurrent with each other and concurrent with the sentences Reynolds is
currently serving under three criminal dockets from 2014. See Amended
Sentence, 4/3/20 (amended to correct docket numbers for criminal cases in
original sentencing order). Reynolds received 229 days of credit for time
served. Id.Thereafter, Reynolds timely filed a post-sentence motion to withdraw
his guilty plea at docket number 43-2019 only (DUI—controlled substance).
Upon consideration of Reynolds’ brief and the Commonwealth’s response
thereto, the court denied Reynolds’ post-sentence motion on June 12, 2020.
Reynolds timely appealed to this Court and raises the following issue for our
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9 Reynolds was further ordered to forfeit his driving privileges in Pennsylvania
for 18 months, install an approved interlock ignition device on each vehicle he
owns for a period of one year upon the restoration of his driving privileges,
and attend, successfully complete, and pay all costs and fees associated with
the Alcohol Highway Safety School and a program for drug and alcohol
addiction while incarcerated as directed by the Pennsylvania Board of
Probation and Parole.
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review: “Whether the trial court erred/abused it[]s discretion when it denied
[his] request to withdraw his guilty plea?” Anders Brief, at 8.
Prior to reviewing Reynolds’ claim, we must determine if counsel has
complied with the procedural requirements for withdrawal. An attorney
seeking to withdraw on appeal must comply with certain procedural and
briefing requirements. Specifically, counsel must:
(1) petition the [C]ourt for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; (2) furnish a
copy of the brief to the [appellant]; and (3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems
worthy of the [C]ourt’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). In addition, our Supreme Court, in Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009), stated that an Anders brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Counsel also must provide the appellant with a copy of the Anders brief,
together with a letter that advises the appellant of his or her right to “(1)
retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3)
raise any points that the appellant deems worthy of the [C]ourt’s attention in
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addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (citation
omitted). Substantial compliance with these requirements is sufficient.
Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).
Here, counsel has filed a motion to withdraw and an Anders brief. In
his motion, counsel states that after a thorough and conscientious
examination of the record, he has determined that the appeal is wholly
frivolous. Motion to Withdraw, 11/9/20. Additionally, counsel mailed
Reynolds a copy of the Anders brief and a letter advising Reynolds of his right
to retain private counsel, represent himself on appeal, and/or raise any
additional issues he believed the Court should consider.10 See Letter from
Attorney O’Donnell to Reynolds, 12/8/20. Finally, counsel’s brief sets out one
issue of arguable merit and, pursuant to the dictates of Santiago, explains
why he believes the appeal to be frivolous. Accordingly, counsel has
substantially complied with the requirements of Anders and Santiago.
Therefore, we may review the issue raised by counsel and also conduct our
independent review of the record.
It is well-settled that “[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. Elia, 83 A.3d 254, 261 (Pa. Super. 2013).
“An abuse of discretion will not be found based on a mere error of judgment,
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10Reynolds has not filed a pro se response to counsel’s Anders brief or
retained counsel to represent him on appeal.
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but rather exists where the [trial] court has reached a conclusion which
overrides or misapplies the law, or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias[,] or ill-will.” Norton,
supra at 120.
Moreover, we note that a crucial difference exists between a
presentence motion and a post-sentence motion to withdraw a plea.
“Although there is no absolute right to withdraw a guilty plea, . . . it is clear
that a request made before sentencing . . . should be liberally allowed.”
Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973) (emphasis in
original). Withdrawal of a guilty plea prior to sentencing should be “freely
permitted” for “any fair and just reason,” unless there is substantial prejudice
to the Commonwealth. Id.; Commonwealth v. Broaden, 980 A.2d 124,
128 (Pa. Super. 2009). In contrast,
[P]ost-sentence motions for withdrawal are subject to
higher scrutiny since courts strive to discourage entry of guilty
pleas as sentence-testing devices. A defendant must
demonstrate that manifest injustice would result if the
court were to deny his post-sentence motion to withdraw
a guilty plea. Manifest injustice may be established if the plea
was not tendered knowingly, intelligently, and voluntarily. In
determining whether a plea is valid, the court must examine the
totality of circumstances surrounding the plea. A deficient plea
does not per se establish prejudice on the order of manifest
injustice.
Id. at 129 (internal citations and quotation marks omitted) (emphasis
added).
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The trial court suggests that Reynolds’ request for a continuance at his
sentencing hearing in order to file a written motion to withdraw his pleas is
not tantamount to an oral presentence motion to withdraw a plea.11 We
disagree. Pennsylvania Rule of Criminal Procedure 591 specifies that the trial
court has the discretion to permit, “at any time before the imposition of
sentence, . . . the withdrawal of a guilty plea.” Pa.R.Crim.P. 591. The official
comment to Rule 591(A) clarifies that “ordinarily, the motion should be filed
in writing before the date of the sentencing hearing[.] . . . However, nothing
in this rule would preclude a defendant from making an oral and on-the-record
motion to withdraw a plea at the sentencing hearing prior to the imposition of
sentence.” Id. cmt. It is clear from the record that, prior to the imposition
of sentence, Reynolds properly sought leave to withdraw his guilty pleas
pursuant to Rule 591. See id.; see also N.T. Sentencing, 3/20/20, at 2-3.
Nevertheless, Reynolds has failed to establish that the trial court abused
its discretion in denying either his presentence motion to withdraw all three
pleas or his post-sentence motion to withdraw one guilty plea. Reynolds
entered a global plea agreement to resolve three outstanding criminal cases
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11 The trial court’s reasoning is, in relevant part, as follows: “[A]lthough
defense counsel mentioned at the sentencing hearing a desire by [Reynolds]
to withdraw all of his pleas, the only matter formally before the [c]ourt was
an oral motion for a continuance.” Trial Court Opinion, 6/15/20, at 6.
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against him after negotiating12 with his counsel and the district attorney.
Reynolds indicated orally, under oath, and in his written plea colloquy form
that he was, in fact, guilty of DUI—controlled substance, unauthorized use of
a motor vehicle, and possession of drug paraphernalia. Reynolds’ assertions
at the sentencing hearing and at present—that he is innocent of DUI—
controlled substance and felt forced into entering his guilty plea due to
counsel’s ineffectiveness—are the antithesis of what he indicated in his written
guilty plea colloquy form and affirmed orally on the record during his colloquy.
See N.T. Partial Jury Trial and Plea Hearing, 12/10/19, at 63-68. This Court
has recognized that “[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.” Commonwealth v. Turetsky, 925 A.2d 876,
881 (Pa. Super. 2007).13
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12 We have previously declared it “inappropriate” for an appellant to
“attempt[] to strip the Commonwealth of the ‘benefit of the bargain’” of a
negotiated plea agreement absent mistake, misrepresentation, or illegality.
“To hold otherwise would make a sham of the negotiated plea process and
would give the defendant a second bite at his sentence, which we have
frequently deplored in the context of withdrawal of a guilty plea.”
Commonwealth v. Dalberto, 648 A.2d 16, 19 (Pa. Super. 1994).
13“The longstanding rule of Pennsylvania law is that a defendant may not
challenge his guilty plea by asserting that he lied while under oath, even if he
avers that counsel induced the lies.” Turetsky, supra at 881 (Pa. Super.
2007).
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With regard to Reynolds’ presentence motion to withdraw all three guilty
pleas, we note that, because Reynolds failed to aver his innocence as to the
charges of unauthorized use of a motor vehicle and possession of drug
paraphernalia at the sentencing hearing, he has not established a “colorable
demonstration” that permitting withdrawal on these pleas prior to sentencing
would promote the interests of fairness and justice. Norton, supra at 120.
Although Reynolds baldly asserted his innocence as to DUI—controlled
substance at the sentencing hearing, the trial court is not required to grant a
presentence motion to withdraw a guilty plea based upon bare assertions of
innocence, especially where the Commonwealth would face substantial
prejudice. Id.
We agree with the trial court that:
[Reynolds] cannot single out case [] 43-2019 for withdraw[al] of
his plea. As noted above, the plea in that case was negotiated as
a package plea for all three of [Reynolds’] cases. Indeed, it
would be [substantially] prejudicial to the Commonwealth for
[Reynolds,] by seeking to withdraw his plea in only one of his
three pending cases[,] to be able to lock in a favorable disposition
of his other two cases, which would have been unlikely but for his
plea in the present case, and thereby preclude the Commonwealth
from returning to a full prosecution of [his] cases.
Trial Court Opinion, 6/15/20, at 5 (emphasis added).
Accordingly, we conclude that the trial court acted within its discretion
in denying Reynolds’ presentence motion to withdraw his plea or pleas.
Similarly, for the foregoing reasons, Reynolds has failed to establish any
“manifest injustice” resulting from the trial court’s denial of his post-sentence
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motion to withdraw his guilty plea with regard to DUI—controlled substance
only. See Broaden, supra.In light of the above, and following our independent review of the
record, we conclude that Reynolds’ appeal is wholly frivolous, and we affirm
his judgment of sentence. Moreover, as we agree with counsel’s assessment
of the appeal, and because we conclude that counsel has satisfied the
procedural requirements for withdrawal on direct appeal, we grant counsel’s
petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/30/2021
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