Com. v. Bingham, A. ( 2023 )

J-S44033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW NATHANIEL BINGHAM :
:
Appellant : No. 494 MDA 2022
Appeal from the Judgment of Sentence Entered February 17, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001380-2021
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 18, 2023
Andrew Nathaniel Bingham (Bingham) appeals from the judgment of
sentence entered in the Court of Common Pleas of Luzerne County (trial
court). He argues that the trial court erred in denying his request to withdraw
a plea as to one count of aggravated assault because the plea was rendered
involuntary by the Commonwealth’s non-performance of a material term of
his negotiated plea agreement – the return of Bingham’s television. Because
the claim is unpreserved for appeal and otherwise without merit, we affirm.
In 2021, while already incarcerated, Bingham was charged with
aggravated assault (18 Pa.C.S. § 2702(a)(3)) and aggravated harassment by
a prisoner (18 Pa.C.S. § 2703.1)). Prior to the scheduled trial date, Bingham
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* Retired Senior Judge assigned to the Superior Court.
J-S44033-22
entered a negotiated agreement wherein Bingham would plead guilty to the
aggravated assault count in exchange for an unspecified sentence. The
remaining charge would be withdrawn, and the Commonwealth agreed to
recommend for the sentence to be made concurrent to the sentence he was
already serving.
At the plea hearing, Bingham’s counsel stated that he believed that
there “was an agreement with the District Attorney’s Office” that a television
confiscated from Bingham by prison staff would be returned upon the entry of
the guilty plea. Plea Hearing Transcript, 12/16/2021, at p. 3. Counsel
conceded, however, that the trial court had no power to direct the Department
of Corrections to return the television. Although neither the trial court, trial
counsel, nor the Commonwealth had reason to believe that Bingham’s request
for his television would be denied, the trial court emphasized that any decision
to return the television was “obviously up to” the Department of Corrections
and not the trial court. Id. at p. 4.
The plea colloquy resumed and Bingham stated that he had been given
a chance to discuss and review all pertinent matters with counsel, “including
the written plea agreement.” He stated that counsel had answered all his
questions and that he would stipulate to the factual basis for the plea.
Bingham stated that he had no questions about the terms of his plea and that
he fully understood what he was agreeing to. The trial court then accepted
Bingham’s guilty plea.
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However, about two months later, Bingham appeared remotely at his
sentencing hearing, requesting for the first time to withdraw his plea. See
Sentencing Hearing Transcript, 2/17/2022, at p. 2. The prison had not
approved Bingham’s television request, and he insisted that he had only
pleaded guilty to the aggravated assault count because he believed that the
television would be returned.
In between the date of the plea hearing and the sentencing hearing,
Bingham’s counsel had withdrawn from representing him in the case and new
counsel had been retained to represent him. Bingham’s new counsel
acknowledged that Bingham lacked any valid grounds to withdraw his guilty
plea. The Commonwealth also stressed that there was nothing in the written
plea agreement about a television and that, in any event, only the Department
of Corrections would have authority to determine whether Bingham could have
his television back.
While still represented by counsel, Bingham argued directly to the trial
court that he should be permitted to withdraw his plea and proceed to trial
because his prior counsel had misadvised him about being entitled to the
television pursuant to the plea. Bingham also suggested that he was innocent
of the aggravated assault charge, as it had resulted from a conspiracy among
his prison guards to incriminate him.
The trial court denied Bingham’s request to withdraw the guilty plea.
Although the trial court recalled discussions about the television at the plea
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hearing, the trial court found that the television had not been a material
condition of the plea agreement. To the contrary, Bingham had been
specifically advised at the plea hearing that the trial court did not have
authority to order the return of the television to him.
Bingham responded by ceasing his participation in the sentencing and
the hearing continued in his absence. He was sentenced to a prison term of
30-60 months and advised (in absentia) that he could file a post-sentence
motion challenging the denial of his request to withdraw his plea within ten
days of the date of the hearing. Bingham did not file a post-sentence motion,
instead opting to file a notice of appeal as to the judgment of sentence.
In his 1925(b) statement of errors complained of on appeal, Bingham
challenged the trial court’s order denying his request to withdraw the guilty
plea. In response, the trial court prepared a written opinion, reasoning that
the return of Bingham’s television was not a material term of his plea. See
Trial Court Opinion, 4/28/2022, at 3-4. Bingham now asserts one issue in his
brief:
Did the trial court err or abuse its discretion by failing to grant
[Bingham’s] pre-sentence request to withdraw his guilty plea
where the guilty plea was entered and induced upon a plea
agreement including a material term that either could not or was
refused to be fulfilled, thus rendering the [Bingham’s] plea
involuntary?
Appellant’s Brief, at 2.
The sole issue raised on appeal is waived because in order to preserve
a challenge to the validity of a plea, there must be either a valid objection at
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sentencing or a post-sentence motion filed within ten days of the sentencing.
See Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i); see also Commonwealth v.
Tareila, 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006).
Since Pennsylvania prohibits hybrid representation, see generally
Commonwealth v. Vinson, 249 A.3d 1197, 1201 (Pa. Super. 2021), and
Bingham made his oral request to withdraw pro se at a time when he was
represented by counsel, the request was a nullity. See Commonwealth v.
Nischan, 928 A.2d 349 (Pa. Super. 2007) (deeming post-sentence motion a
nullity with no legal effect because it was filed pro se by a counseled
defendant).
Further, despite being advised of the need to raise the claim in a post-
sentence motion, Bingham waited until after the filing of his notice of appeal
to challenge the trial court’s ruling on his request to withdraw the plea. Thus,
the claim was waived because a “Rule 1925(b) statement of matters
complained of on appeal is not a vehicle in which issues not previously
asserted may be raised for the first time.” See Commonwealth v. Pardoe,
133 A.3d 738, 746 (Pa. Super. 2016) (quoting Glenbrook Leasing Co. v.
Beausang, 839 A.2d 437, 444 9Pa. Super. 2003)).
Even assuming that Bingham preserved his sole issue for our review, it
would be unavailing because the trial court did not abuse its discretion in
denying Bingham’s request to withdraw his plea. The Pennsylvania Rules of
Criminal Procedure provide that, “[a]t any time before the imposition of
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sentence, the court may, in its discretion, permit, upon motion of the
defendant . . . the withdrawal of a plea of guilty . . . and the substitution of a
plea of not guilty.” Pa.R.Crim.P. 591(A). Such a motion may be granted
where “the accused has made some colorable demonstration, under the
circumstances, such that permitting withdrawal of the plea would promote
fairness and justice.” Commonwealth v. Norton, 201 A.3d 112, 120-21
(Pa. 2019).
Here, Bingham’s written plea agreement does not at all reference that
his television would be returned as a condition of the plea. See Plea
Agreement, 12/16/2021. At the time the plea agreement was signed, the trial
court verbally inquired whether Bingham had reviewed the document with
counsel, and Bingham responded that he had done so. See Transcript of Plea
Hearing, 12/16/2021, at p. 5. Both the Commonwealth and the trial court (as
well as Bingham’s counsel) stressed to him that the trial court did not have
the authority to direct the Department of Corrections to return Bingham’s
television to him while he was still serving his prison term.
Bingham then voluntarily entered his counseled guilty plea after
acknowledging the terms of the agreement and stating that he understood
everything that had been explained to him at the colloquy. The record
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establishes that the trial court’s colloquy of Bingham fully comported with the
requirements of a knowing and voluntary plea.1
In light of these facts, we find no abuse of discretion in the trial court’s
determination that Bingham failed to make a colorable demonstration as to
why the withdrawal of his plea would promote fairness and justice. The order
on review must, therefore, stand.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/18/2023
____________________________________________
1 Under Pa.R.Crim.P. 590, a trial court’s colloquy of a defendant must include
inquiries into whether the defendant understands the nature of the subject
charges; whether there is a factual basis for the plea; whether the defendant
understands the right to a jury trial; whether the defendant understands the
presumption of innocence; whether the defendant is aware of the applicable
sentencing ranges; and whether the defendant is aware that the trial court is
not bound by plea agreements between the defendant and the prosecution.
See Commonwealth v. Flood, 627 A.2d 1193, 1197 (Pa. Super. 1993). The
trial court’s colloquy of Bingham in this case covered all these required areas
of inquiry. Any misunderstanding Bingham may have had prior to entering
his plea about his entitlement to his television would have been clarified by
the trial court, counsel and the prosecution at the plea hearing.
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