Com. v. Rosario-Bones, J. ( 2014 )

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee, :
:
v. :
:
JAVIER ROSARIO-BONES, :
:
Appellant : No. 228 MDA 2014
Appeal from the Judgment of Sentence January 15, 2013,
Court of Common Pleas, Lancaster County,
Criminal Division at No. CP-36-CR-0000320-2012
BEFORE: DONOHUE, JENKINS and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 04, 2014
Javier Rosario- - from the judgment of
sentence entered following his convictions of delivery of a controlled
substance, 35 P.S. § 780-113(a)(30), and criminal use of a communications
facility, 18 Pa.C.S.A. § 7512(a). We affirm.
We summarize the relevant facts as follows. On June 13, 2011, the
Lancaster police apprehended Rosario-Bones after he sold four bags of
heroin to a confidential informant. On January 15, 2013, Rosario-Bones
appeared for trial. At the commencement of the proceeding, his court-
appointed counsel told the trial court that Rosario-Bones wanted a new
attorney. N.T., 1/15/13, at 2. After significant discussion, the trial court
denied this request. Rosario-Bones then pled guilty to the above-mentioned
*Retired Senior Judge assigned to the Superior Court.
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crimes and was sentenced to an aggregate term of three to eight years of
imprisonment. No post-sentence motions or direct appeal were filed.
On June 5, 2013, Rosario-Bones filed a pro se PCRA petition.
Following a hearing, the PCRA court reinstated Rosario-
rights and granted his request to file post-sentence motions nunc pro tunc.
Rosario-Bones subsequently filed a post-sentence motion, arguing that his
guilty plea was involuntary. The trial court denied the post-sentence
motion, and this timely appeal followed.
The first issue that Rosario-
grounds for appeal except for the jurisdiction of the court, the voluntariness
of the plea, and the legality of the sentence. Commonwealth v. Barbaro,
__ A.3d. __, 2014 WL 2601509 at *1 n.1 (Pa. Super. June 11, 2014). As
this issue does not implicate the jurisdiction of the court, the voluntariness
of his plea, or the legality of his sentence, Rosario-Bones has waived it for
purposes of appeal.
Even if this issue were not waived, we would conclude that it is without
merit.
Pennsylvania Rule of Criminal Procedure 122(C)
defendant for whom counsel has been appointed
Pa.R.Crim.P 122(C). To satisfy this standard, a
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defendant must demonstrate he has an irreconcilable
difference with counsel that precludes counsel from
representing him. Commonwealth v. Spotz, [] 756
A.2d 1139, 1150 ([Pa.] 2000) (citing
Commonwealth v. Tyler, [] 360 A.2d 617, 619
([Pa.] 1976)). The decision whether to appoint new
counsel lies within the trial court's sound discretion.
Id. (citing Commonwealth v. Segers, [] 331 A.2d
462, 465 ([Pa.] 1975)).
Commonwealth v. Wright, 961 A.2d 119, 134 (Pa. 2008). Rosario-Bones
ce that there were serious issues
between [trial counsel] and [Rosario-
record supports this claim, as it indicates that when making his request for
new counsel, Rosario-Bones told the trial court that trial counsel called him
-
Id. at 7.
As st
Wright, 961 A.2d at 134. In Commonwealth v. Johnson, 454 A.2d 1111
(Pa. Super. 1983), the defendant argued that the trial court erred in denying
Id. at 1115. More specifically, the defendant
complained that the attorney used a curse word when speaking with him.
Id. at 1116. This Court concluded that this complaint did not amount to an
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irreconcilable difference such that the trial court should have granted the
request for new counsel. Id. at 1116-17. Here, Rosario-
that trial counsel called him stupid, is
complaint in Johnson, and therefore we conclude that it does not establish
an irreconcilable difference entitling him to the appointment of new counsel.1
In his second issue on appeal, Rosario-Bones argues that his plea was
therefore involuntary, such that the trial court erred in denying his request
2
sentence imposed, the plea
may be withdrawn only upon a showing of manifest injustice, which may be
Commonwealth v. Leidig, 850 A.2d 743, 745 (Pa. Super. 2004), aff'd, 956
A.2d 399 (Pa. 2008). This Court addressed the precise argument that
Rosario-Bones now raises in Commonwealth v. Egan, 469 A.2d 186 (Pa.
Super. 1983) (en banc). In that case, the defendant first intended to plead
1
Rosario-Bones does not mention on appeal his vague statement, made to
the trial court, that trial counsel was not representing him well. As such, it
is waived. See Commonwealth v. Doyen, 848 A.2d 1007, 1014 (Pa.
Super. 2004) (noting that this Court will not review not properly developed
in briefs).
2
We note that in contravention of the Rules of Appellate Procedure,
Rosario-Bones did not develop his argument with citation to any relevant
case law or reference to the record. See Pa.R.A.P. 2119. We could find this
issue waived on the basis of these briefing defects, Pa.R.A.P. 2101, but we
decline to do so in this instance.
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guilty, but changed his mind at the last minute and indicated that he wanted
to go to trial. A few hours later, the defendant requested a continuance to
obtain new counsel. The trial court denied that request, and the defendant
subsequently pled guilty to robbery. On appeal, he argued that the trial
him in the position of either proceeding to trial with counsel in which he did
not have confidence or pleading guilty. This created, he says, a form of
coercion which rendered his guilty plea Id. at 189. After
considered whether such a claim could ever afford a defendant relief:
Notwithstanding the fact that an indigent defendant
does not have a right to counsel of his choice,
Commonwealth v. Simpson, [] 294 A.2d 805 ([Pa.
Super.] 1972), it is certainly conceivable that a
defendant could be placed in a situation in which a
lack of confidence in his court-appointed counsel
could result in an unwillingness to go to trial. This
could, in turn, result in the entry of an involuntary
guilty plea. The questions before us are what the
parameters are in which we will recognize that this
has occurred and whether they are present here.
A recent United States Supreme Court decision,
Morris v. Slappy, 461 U.S. 1, 103 S. Ct. 1610, 75
L. Ed. 2d 610 (1983), is most helpful in setting these
boundaries. In the opinion of the Court, the Chief
Justice wrote:
The Court of Appeals' conclusion that the Sixth
Amendment right to couns
substance if it did not include the right to a
meaningful attorney-
[Slappy v. Morris ] 649 F.2d [718] at 720 [
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(9th Cir.1981) ] (emphasis added), is without
basis in the law. No authority was cited for this
novel ingredient of the Sixth Amendment
guarantee of counsel, and of course none could
be. No court could possibly guarantee that a
defendant will develop the kind of rapport with
his attorney privately retained or provided by
the public that the Court of Appeals thought
part of the Sixth Amendment guarantee of
counsel. Accordingly, we reject the claim that
the Sixth Amendment guarantees a
and his counsel.
Morris v. Slappy, supra, 461 U.S. at [12], 103
S. Ct. at 1617.
The lesson to be gained from this holding is simple.
Appellant's mere dissatisfaction with counsel does
not work a violation of his Sixth Amendment right to
counsel. Without more, such dissatisfaction could not
create a situation which we would recognize as
coercing a guilty plea.
This is in accord with the law regarding
continuances. The decision whether to grant a
continuance is within the discretion of the court
below. Commonwealth v. Kittrell, [] 427 A.2d
1380 ([Pa. Super.] 1981). An appellate court cannot
disturb a continuance decision absent an abuse of
that discretion. The United States Supreme Court
also addressed this area in Morris.
Trial judges necessarily require a great deal of
latitude in scheduling trials. Not the least of
their problems is that of assembling the
witnesses, lawyers, and jurors at the same
place at the same time, and this burden
counsels against continuances except for
compelling reasons. Consequently, broad
discretion must be granted trial courts on
matters of continuances; only an unreasoning
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violates the right to the assistance of counsel.
Ungar v. Sarafite, 376 U.S. 575, 589 [84
S. Ct. 841, 849, 11 L. Ed. 2d 921] (1964).
Morris, supra, 461 U.S. at [12], 103 S. Ct. at 1616.
which was not granted, could appellant's right to
counsel have been violated and the guilty plea have
been coerced.
What would make such a request justifiable? All such
requests cannot be per se justifiable. That would
enable a criminal defendant to indefinitely delay his
going to trial. He would simply have to announce to
the court at every trial date that he was dissatisfied
with his counsel and wanted a continuance to obtain
new counsel. Nor, as noted above, can all such
requests be considered per se unjustifiable. A
standard is necessary to separate the justifiable from
the unjustifiable request for a continuance due to
dissatisfaction with counsel.
In determining the applicable standard, we have
looked to the test applied in a similar context:
whether a confession can be suppressed because it
was given in a custodial interrogation setting without
constitutional safeguards, rooted in voluntariness,
having been met. The situation before us has many
parallel features: whether a guilty plea can be
withdrawn because it was given in a situation
without constitutional safeguards, rooted in
voluntariness, having been met.
The standard to be applied to the former situation in
this Commonwealth was announced in
Commonwealth v. Marabel, [] 283 A.2d 285
([Pa.] 1971) (Eagen, J.).
It is our view that the proper test was applied
in Myers v. State, 3 Md.App. 534, 240 A.2d
288 (1968), wherein the court stated:
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* * * [C]ustody occurs if a suspect is led to
believe, as a reasonable person, that he is
being deprived or restricted of his freedom of
action or movement under pressures of official
authority. * * * whether the suspect is
physically deprived of his freedom of action in
any significant way or is placed in a situation in
which he reasonably believes that his freedom
of action of movement is restricted by such
Id. at 537, 240 A.2d at 290.
The above test has the element of
objectiveness since we look at what the
suspect could believe as a reasonable man,
and by focusing on the suspect, compliance
with the thrust of the Miranda decision is
achieved.
Commonwealth v. Marabel, supra, [] 283 A.2d at
288.
***
The standard announced in Marabel is transferable
to the situation before us: whether a guilty plea can
be withdrawn on the grounds that the guilty plea
was coerced through the denial of a continuance,
forcing appellant to plead guilty rather than go to
trial with counsel in whom he had no confidence.
Id. at 189-
criminal defendant must have a reasonable belief that his counsel will not
adequately represent him. Id.
explaining the obvi
that the criminal defendant must actually have such a belief. Second, that
Id.
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Rosario-Bones does not point to any evidence that would support a
finding that trial counsel could not have adequately represented him, and
our review of the record reveals none. He has filed to meet the Egan
standard, and so we must conclude that he has not established a manifest
injustice such that would require the withdrawal of his guilty plea. Leidig,
850 A.2d at 745.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2014
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