Com. v. Gonzalez, R. ( 2016 )

J-S30036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RUBEN GONZALEZ
Appellant No. 1077 EDA 2015
Appeal from the Judgment of Sentence March 10, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001498-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 10, 2016
Appellant Ruben Gonzalez appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his open
guilty plea to aggravated assault and conspiracy to commit aggravated
assault.1 We affirm and grant counsel’s petition to withdraw.
At his guilty plea hearing, Appellant stipulated to the following facts:
[O]n October 24[,] 2012[,] the complaining witness,
Christopher Corisdeo [(“Victim”),] was high on PCP and
walking down the [1900] block of East Dauphin Street….
[Victim] was flailing his arms and he [struck] one of the
codefendants in the face. That codefendant is Myleidi
Rodriguez. Ms. Rodriquez at the time was the girlfriend of
[Appellant]….
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18 Pa.C.S. §§ 2702(a) and 903(c), respectively.
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As a result of witnessing that, [Appellant] along with
several codefendants struck the victim. [V]ictim was
knocked to the ground immediately. The defendants,
Brandon Baez, Melvin Soto, Frank Justiniano, Aaron Webb,
and Alex Webb proceeded to kick, punch, and stomp
[Victim] in his face. [Victim] was dragged to an empty lot
at the corner of Dauphin and Emerald Streets where the
assault continued. Responding officers found [Victim’s]
body in a pool of blood. One of his eyes had fallen out of
the socket. One of the codefendants, Mr. Frank Justiniano,
was observed by witnesses and several of the
codefendants gave statements saying that Mr. Justiniano
picked up a cinder block at the end of the assault and
dropped the cinder block on [Victim’s] head.
Every bone in [Victim’s] face was fractured. He had to
have his entire face reconstructed with titanium plate.
[H]e had over 18 hours [of] surgery and now two years
later he still suffers serious side effects including seizures,
…serious cognizant delays, memory issues, and
depression.
N.T., Guilty Plea, 12/02/2014, at 7-8.
On January 11, 2013, a grand jury indicted Appellant with attempted
murder, aggravated assault, robbery, possession of an instrument of crime,
and conspiracy to commit those crimes. On December 2, 2014, Appellant
completed a written guilty plea, and the court conducted an oral guilty plea
colloquy. In exchange for pleading guilty to aggravated assault and
conspiracy to commit aggravated assault, the other charges against
Appellant were nolle prossed. Appellant indicated on his written guilty plea
that he was aware he could go to prison for twenty (20) to forty (40) years.
On March 10, 2015, the court sentenced Appellant to six (6) to twenty
(20) years’ incarceration for aggravated assault and three (3) to twenty (20)
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years’ incarceration for conspiracy. The court imposed the sentences
consecutively, resulting in an aggregate sentence of nine (9) to forty (40)
years’ incarceration.
On March 17, 2015, Appellant filed a motion to withdraw his guilty
plea and for reconsideration of sentence, claiming he did not know his
sentences could be imposed consecutively. On April 13, 2015, before the
court had ruled on this motion, Appellant filed a motion to have his appellate
rights re-instated nunc pro tunc, because he believed he had missed the
deadline to file a timely appeal. That same day, the court reinstated
Appellant’s appellate rights nunc pro tunc, and Appellant filed a timely notice
of appeal on April 14, 2015.2 On April 15, 2015, the court ordered Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and he timely complied on April 20, 2015.
On October 26, 2015, Appellant’s counsel filed a petition for leave to
withdraw along with an Anders brief.
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2
Neither the docket nor the certified record reflects that the court ruled on
Appellant’s motion to withdraw his guilty plea and for reconsideration of
sentence. In its opinion, however, the trial court states: “The motions were
denied.” Trial Court Pa.R.A.P. 1925(a) Opinion, filed July 13, 2015, at 1. If
the trial court did not rule on Appellant’s post sentence motion, it would
have been denied by operation of law July 15, 2015. See Pa.R.Crim.P.
720(B)(3)(a). Because the trial court indicated that it denied Appellant’s
motion and because it reinstated Appellant’s appellate rights nunc pro tunc,
we deem this appeal properly before us, despite the ambiguous procedural
history.
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As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967) and Commonwealth v. Santiago, 978 A.2d
349 (Pa.2009). Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The 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 must also provide a copy of the
Anders brief to the appellant, 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 court’s attention in addition to the points raised by
counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super.2007), appeal denied, 936 A.2d 40 (Pa.2007). Substantial
compliance with these requirements is sufficient. Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the
antecedent requirements have been met, this Court must then make an
independent evaluation of the record to determine whether the appeal is, in
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fact, wholly frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246
(Pa.Super.2006).
Here, counsel filed a petition for leave to withdraw as counsel along
with an Anders brief and a letter advising Appellant of his right to obtain
new counsel or proceed pro se to raise any points he deems worthy of the
court’s attention in addition to the issues raised in the Anders brief. The
petition states counsel determined there were no non-frivolous issues to be
raised on appeal, notified Appellant of the withdrawal request, supplied him
with a copy of the Anders brief, and sent him a letter explaining his right to
proceed pro se or with new, privately-retained counsel to raise any
additional points or arguments that Appellant believed had merit. In the
Anders brief, counsel provides a summary of the facts and procedural
history of the case with citations to the record, refers to evidence of record
that might arguably support the issue raised on appeal, provides citations to
relevant case law, and states his conclusion that the appeal is wholly
frivolous and his reasons therefor. See Anders Brief, at 7-9, 13-19.
Accordingly, counsel has substantially complied with the technical
requirements of Anders and Santiago.
As Appellant filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel, we review this appeal based on the issues raised
in the Anders brief:
WHETHER [APPELLANT’S] GUILTY PLEA WAS A KNOWING
AND VOLUNTARY PLEA[?]
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WHETHER THE TRIAL COURT SHOULD HAVE PERMITTED
[APPELLANT] TO WITHDRAW HIS GUILTY PLEA WHERE
IMMEDIATELY AFTER IMPOSITION OF SENTENCE AT THE
BAR OF THE COURT [APPELLANT] ORALLY REQUESTED
WITHDRAWAL[?]
Anders Brief at 6. 3
Appellant claims the trial court abused its discretion by denying his
motion to withdraw his guilty plea, after imposition of sentence, because he
did not enter into it knowingly and voluntarily. We disagree.
This Court’s scope of review of a trial court’s ruling on a motion to
withdraw a plea is to review the record of the plea and any post-sentence
proceeding. See Commonwealth v. Moser, 921 A.2d 526, 528-530
(Pa.Super.2007). Our standard of review is whether the trial court abused
its discretion. Id. at 530.
“[T]he law does not require that [the defendant] be pleased with the
outcome of his decision to enter a plea of guilty: All that is required is that
[his] decision to plead guilty be knowingly, voluntarily, and intelligently
made.” Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa.Super.2013)
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3
Appellant also listed the following issue in the Anders Brief:
WHETHER THERE IS ANYTHING IN THE RECORD THAT
MIGHT ARGUABLY SUPPORT THE APPEAL THAT OBVIATES
A CONCLUSION THAT THE APPEAL IS FRIVOLOUS[?]
Anders Brief at 6. This issue reflects counsel’s request to withdraw, which
we grant herein after a discussion of Appellant’s other issues, infra.
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(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192
(Pa.Super.2010), appeal denied, 9 A.3d 626 (Pa.2010) (alterations in
original)). A guilty plea colloquy must “affirmatively demonstrate the
defendant understood what the plea connoted and its consequences.” Id.
(quoting Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa.Super.1998)).
No absolute right to withdraw a plea exists. Commonwealth v. Flick, 802
A.2d 620, 623 (Pa.Super.2002). After a defendant enters a guilty plea, “it is
presumed that he was aware of what he was doing, and the burden of
proving involuntariness is upon him.” Commonwealth v. Bedell, 954 A.2d
1209, 1212 (Pa.Super.2008).
The standard for withdrawal of a guilty plea after the imposition of
sentence is much higher than the standard applicable to a pre-sentence
motion to withdraw. Commonwealth v. Byrne, 833 A.2d 729, 737
(Pa.Super.2003). A defendant must demonstrate that manifest injustice
would result if the court were to deny his post-sentence motion to withdraw
the plea. Id. “[D]isappointment by a defendant in the sentence actually
imposed does not represent manifest injustice.” Id. “Manifest injustice may
be established if the plea was not tendered knowingly, intelligently, and
voluntarily.” Commonwealth v. Hodges, 789 A.2d 764, 765
(Pa.Super.2002); see also Pa.R.Crim.P. 590(a)(3). “Determining whether a
defendant understood the connotations of his plea and its consequences
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requires an examination of the totality of the circumstances surrounding the
plea.” Commonwealth v. Moser, 921 A.2d 526, 529 (Pa.Super.2007).
“A valid plea colloquy must delve into six areas: 1) the nature of the
charges, 2) the factual basis of 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.
Morrison, 878 A.2d 102, 107 (Pa.Super.2005), appeal denied, 887 A.2d
1241 (Pa.2005); Comment to Pa.R.Crim.P. 590(A)(2). A written plea
colloquy that is read, completed and signed by the defendant and made part
of the record may serve as the defendant’s plea colloquy when
supplemented by an oral, on-the-record examination. Morrison, 878 A.2d
at 108 (citing Comment to Pa.R.Crim.P. 590). Even if “there is an omission
or defect in the guilty plea colloquy, a plea of guilty will not be deemed
invalid if the circumstances surrounding the entry of the plea disclose that
the defendant had a full understanding of the nature and consequences of
his plea and that he knowingly and voluntarily decided to enter the plea.”
Fluharty, 632 A.2d at 315. Further, “where the record clearly demonstrates
that a guilty plea colloquy was conducted, during which it became evident
that the defendant understood the nature of the charges against him, the
voluntariness of the plea is established.” Moser, 921 A.2d at 529.
Here, in denying Appellant’s petition to withdraw his guilty plea, the
trial court reasoned:
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Appellant both signed the colloquy form, and later testified
in court that he understood the terms of his plea. N.T.,
12/02/2014, at 2. Appellant verbally verified that he
understood the rights he was giving up. Id. at 3. He
stated that he understood he was submitting an “open
plea”[4] and that sentencing would be at the discretion of
the judge following presentence and mental health
evaluations. Id. at 2. He stated in the colloquy form and
before this court that he understood that the sentence
could be up to forty years’ imprisonment. Colloquy, at 6;
N.T., 12/2/2014, at 3. Appellant was questioned by this
court prior to sentencing to ensure that he understood and
accepted the terms of the plea arrangement. Id. at 3. He
was sentenced in accordance with the sentencing
guidelines, as well as within the range of possible
sentences indicated in the colloquy form. Upon hearing
that his sentences were to be served consecutively,
Appellant immediately objected and indicated he would like
to withdraw his guilty plea. N.T., 3/10/2015.
* * *
It is the opinion of this court that the guilty plea was
entered into with a full understanding of its terms. No
manifest injustice is created by refusing to allow Appellant
to use a guilty plea to “test the waters” of sentencing only
to renege when an appropriate sentence within the
sentencing guidelines is handed down.
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4
We observe:
[i]n an open plea agreement, there is an agreement as to the
charges to be brought, but no agreement at all to restrict the
prosecution’s right to seek the maximum sentences applicable to
those charges. At the other end of the negotiated plea
agreement continuum, a plea agreement may specify not only
the charges to be brought, but also the specific penalties to be
imposed.
Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa.Super.1994) (quoting
Commonwealth v. Porreca, 567 A.2d 1044, 1047 (Pa.Super.1989), rev'd
on other grounds in 595 A.2d 23 (Pa.1991)).
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Trial Court Pa.R.A.P. 1925(a) Opinion, filed July 13, 2015, at 5, 6.
The trial court did not abuse its discretion in denying Appellant’s
request to withdraw his guilty plea that he entered into knowingly,
intelligently, and voluntarily. In return for his open plea to aggravated
assault and conspiracy, Appellant received the benefit of all other charges
being nolle prossed. Appellant knew he could receive a maximum of 40
years’ incarceration. Moreover, his minimum sentence of 9 years’
incarceration is far less than what he could have received. Appellant cannot
now escape the terms of the bargain into which he voluntarily entered.
Further, after an independent review of the record, we agree with
Counsel that this appeal is wholly frivolous.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2016
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