Com. v. Rivera, A. ( 2015 )

J-S14018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANGEL RIVERA,
Appellant No. 1152 EDA 2014
Appeal from the Judgment of Sentence of December 6, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006496-2013
BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 08, 2015
Appellant, Angel Rivera, appeals from the judgment of sentence
entered on December 6, 2013, as made final by the denial of post-sentence
motions on April 9, 2014. We affirm.1
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1
On February 3, 2015, the Commonwealth, pursuant to 42 Pa.C.S.A.
§ 5988, applied to this Court for an order sealing the certified record. See
Application to Seal Certified Record, 2/3/15. In relevant part, § 5988
provides:
§ 5988. Victims of sexual or physical abuse
(a) Release of name prohibited.--Notwithstanding any other
provision of law to the contrary, in a prosecution involving
a minor victim of sexual or physical abuse, the name of the
minor victim shall not be disclosed by officers or
employees of the court to the public, and any records
revealing the name of the minor victim shall not be open
to public inspection.
(Footnote Continued Next Page)
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The trial court summarized the underlying facts as follows.
On March 29, 2013, [Appellant] went to [the residence] of his
14-year-old niece, [L.B.], the [c]omplainant. [Appellant]
entered [L.B.’s] bedroom, where he began to smoke marijuana.
He asked [L.B.] if she wanted to smoke the marijuana. [L.B.]
refused. [Appellant] then insisted that [L.B.] take a pill, which
was later identified as Percocet. After ingesting the pill, [L.B]
felt dizzy and she fell asleep.
When [L.B] awoke, she was lying on her stomach, with her pants
and underwear around her ankles. [Appellant] was lying on top
of her, naked. [L.B.] was sore in her vagina and anal area. She
felt [that Appellant had attempted] to insert his penis inside of
her vagina. She was able to get from underneath [Appellant].
She went to the bathroom. When she returned to her bedroom,
[Appellant] was still there and he then began to feel [L.B’s]
breast[s] and vagina.
Trial Court Opinion, 8/28/14, at 2-3 (not paginated; footnote omitted).
The trial court summarized the ensuing procedural history in this case
as follows:
_______________________
(Footnote Continued)
* * *
(b) Penalty.--Any person who violates this section commits a
misdemeanor of the third degree.
42 Pa.C.S.A. § 5988.
In its application, the Commonwealth alleged that the victim of Appellant’s
offenses was a minor since she was under the age of 18 at the time
Appellant assaulted her. Application to Seal Certified Record, 2/3/15, at ¶ 2.
In addition, the Commonwealth alleged that the certified record contains
multiple documents that include the victim’s full name. Id. at ¶ 6. Our
review of the certified record confirms the accuracy of the Commonwealth’s
averments and Appellant did not respond to the Commonwealth’s request.
Accordingly, we shall grant the Commonwealth’s request for relief.
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[Appellant] was arrested on April 25, 2013. [On May 23, 2013,
the Commonwealth filed a criminal information charging
Appellant with multiple offenses: criminal attempt to commit
rape of a substantially impaired person, 18 Pa.C.S.A. §§ 901(a)
and 3121(a)(4); unlawful contact with minor, 18 Pa.C.S.A.
§ 6318(a); sexual assault, 18 Pa.C.S.A. § 3124.1; endangering
welfare of children, 18 Pa.C.S.A. § 4304(a); criminal attempt to
commit involuntary deviate sexual intercourse with a
substantially impaired person, 18 Pa.C.S.A. §§ 901(a) and
3123(a)(4); indecent assault upon a substantially impaired
person, 18 Pa.C.S.A. § 3126(a)(5); and corruption of minors, 18
Pa.C.S.A § 6301(a)(1)(i). Information, 5/23/13.][2]
On July 19, 201[3], [Appellant] entered a [negotiated] guilty
plea to the charges of indecent assault and corruption of a
minor. [Appellant, the Commonwealth, and the trial court
executed a written guilty plea colloquy stating that Appellant
would be sentenced to two to four years’ imprisonment for the
indecent assault conviction, followed by three years state sex
offenders probation for the corruption of a minor conviction.]
Following written and oral colloquies, the [t]rial [c]ourt accepted
[Appellant’s] guilty plea [on the record]. Sentencing was
[3]
deferred pending [a] Megan’s Law Assessment. On November
18, 2013, sentencing was again deferred, to allow [Appellant]
further investigation under Megan’s Law.
On December 6, 2013, [Appellant] appeared before the [t]rial
[c]ourt for sentencing. Prior to [the court’s pronouncement of
____________________________________________
2
Charges for aggravated indecent assault without consent (18 Pa.C.S.A.
§ 3125(a)(1)), harassment (18 Pa.C.S.A. § 2709(a)(1)), and sexual abuse of
children (18 Pa.C.S.A. § 6312(b)) were dismissed at the conclusion of
Appellant’s May 16, 2013 preliminary hearing. A separate charge of criminal
attempt to commit incest with a minor (18 Pa.C.S.A. §§ 901(a) and
4302(b)(2)) was later nolle prossed by the Commonwealth.
3
Although the trial court refers to Megan’s Law, we note that this statutory
scheme expired on December 20, 2012. See Pa.C.S.A. §§ 9791-9799.9.
The Sexual Offender Registration and Notification Act (SORNA) replaced
Megan’s Law. See 42 Pa.C.S.A. §§ 9799.10-9799.41. Since this
discrepancy is immaterial to our disposition of this case, we did not alter the
trial court’s original references.
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sentence, Appellant,] through counsel, moved to withdraw his
guilty plea. Thereafter, [Appellant] personally addressed the
[c]ourt. Following [Appellant’s] statement, the [t]rial [c]ourt
denied [Appellant’s motion and sentenced him] to two to four
years for the crime of indecent assault, followed by three years
of probation for the crime of corrupting a minor. [This sentence
reflected the terms of the negotiated guilty plea agreement
entered between Appellant and the Commonwealth on July 19,
2013.]
On December 9, 2013, [Appellant], through counsel, filed a
timely post-sentence motion, seeking to [withdraw his guilty
plea]. On April 9, 2014, this motion was denied by operation of
law. On April 11, 2014, [Appellant,] through counsel, filed a
timely notice of appeal. On April 24, 2014, the [t]rial [c]ourt
entered a [Pa.R.A.P.] 1925(b) [o]rder, directing [Appellant] to
file a concise statement of errors complained of on appeal. On
April 29, 29014, [Appellant] filed a timely [concise] statement.
[The trial court issued its Rule 1925(a) opinion on August 28,
2014.]
Trial Court Opinion, 8/28/14, at 1-2 (not paginated; footnote in original).
Appellant’s brief raises the following question for our review:
Whether the [trial] court erred in denying Appellant’s motion to
withdraw his guilty plea made prior to the imposition of
sentence, where Appellant presented a fair and just reason for
the withdrawal of the plea, and the Commonwealth would not
have been substantially prejudiced by the withdrawal?
Appellant’s Brief at 3.
Appellant argues that the trial court abused its discretion in denying
his motion to withdraw his guilty plea. Initially, Appellant points out that the
more generous, pre-sentence standard for withdrawing a guilty plea should
apply since Appellant moved to withdraw his plea before the trial court
formally imposed his punishment. Under this standard, Appellant argues
that his assertion of actual innocence established a “fair and just” reason to
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support withdrawal. Appellant concludes that the five-month delay between
the date he entered his guilty plea and the date he moved to withdraw his
plea was not so long as to prejudice the Commonwealth in its prosecution of
this case.
In response, the Commonwealth claims that the stricter,
post-sentence standard for withdrawal of a guilty plea should apply under
the circumstances of this case. The Commonwealth points out that the more
stringent “manifest injustice” standard applies since Appellant accepted a
negotiated plea and was aware of his sentence before he filed his motion to
withdraw. Using this standard, the Commonwealth argues that, since
Appellant’s plea was entered knowingly, intelligently, and voluntarily, no
manifest injustice resulted from the trial court’s refusal to permit Appellant
to withdraw his plea. In the alternative, the Commonwealth argues that
Appellant was not entitled to withdraw his plea even under the more lenient
“fair and just reason” standard because he did not assert his actual
innocence.
We recently elaborated on the principles and standards that govern a
defendant’s request to withdraw a guilty plea. In Commonwealth v.
Prendes, 97 A.3d 337 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa.
2014), this Court stated:
“At any time before the imposition of sentence, the court may, in
its discretion, permit, upon motion of the defendant, or direct
sua sponte, the withdrawal of a plea of guilty or nolo contendere
and the substitution of a plea of not guilty.” Pa.R.Crim.P
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591(A); Commonwealth v. Santos, 301 A.2d 829, 830 (Pa.
1973). “Although there is no absolute right to withdraw a guilty
plea, properly received by the trial court, it is clear that a
request made [b]efore sentencing ... should be liberally
allowed.” Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa.
1973). “Thus, in determining whether to grant a pre-sentence
motion for withdrawal of a guilty plea, ‘the test to be applied by
the trial courts is fairness and justice.’ ” Id. at 271. “If the trial
court finds ‘any fair and just reason’, withdrawal of the plea
before sentence should be freely permitted, unless the
prosecution has been ‘substantially prejudiced.’” Id. As a
general rule, “the mere articulation of innocence [is] a ‘fair and
just’ reason for the pre-sentence withdrawal of a guilty plea
unless the Commonwealth has demonstrated that it would be
substantially prejudiced.” Commonwealth v. Katonka, 33 A.3d
44, 46 (Pa. Super. 2011) (en banc) [].
[Of the considerations outlined in Forbes, “the critical one is the
presence or lack of prejudice to the Commonwealth.”
Commonwealth v. Boofer, 375 A.2d 173, 174 (Pa. Super.
1977) (citing Commonwealth v. McLaughlin, 366 A.2d 238,
241 (Pa. 1976) (stating: “[T]he existence of substantial
prejudice to the Commonwealth is the crucial factor in
determining whether to allow a presentence withdraw of a guilty
plea”)). Generally speaking, “prejudice would require a showing
that due to events occurring after the plea was entered, the
Commonwealth is placed in a worse position than it would have
been had trial taken place as scheduled.” Commonwealth v.
Kirsch, 930 A.2d 1282, 1286 (Pa. Super. 2007), appeal denied,
945 A.2d 168 (Pa. 2008). When a guilty plea is withdrawn
before sentencing, the withdrawal usually does not substantially
prejudice the Commonwealth if it simply places the parties “back
in the pretrial stage of proceedings.” Id. Mere speculation that
witnesses would not appear at a subsequent trial or would
change their stories does not alone rise to the level of
substantial prejudice. McLaughlin, 366 A.2d at 241.]
In contrast, after the court has imposed a sentence, a defendant
can withdraw his guilty plea “only where necessary to correct a
manifest injustice.” Commonwealth v. Starr, 301 A.2d 592,
595 (Pa. 1973). “[P]ost-sentence motions for withdrawal are
subject to higher scrutiny since courts strive to discourage the
entry of guilty pleas as sentencing-testing devices.”
Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa. Super. 2010),
appeal denied, 32 A.3d 1276 (Pa. 2011). If the appellant knows
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the only possible sentence he can get for the crime to which he
pled guilty, then any pre-sentence motion to withdraw the plea
is akin to a post-sentence motion to withdraw the plea, and the
“manifest injustice” standard will apply to the pre-sentence
motion. Commonwealth v. Lesko, 467 A.2d 307, 310 (Pa.
1983).
To be valid [under the “manifest injustice” standard], a guilty
plea must be knowingly, voluntarily and intelligently entered.
Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super.
2003). “[A] manifest injustice occurs when a plea is not
tendered knowingly, intelligently, voluntarily, and
understandingly.” Commonwealth v. Gunter, 771 A.2d 767,
771 (Pa. 2001). The Pennsylvania Rules of Criminal Procedure
mandate pleas be taken in open court and require the court to
conduct an on-the-record colloquy to ascertain whether a
defendant is aware of his rights and the consequences of his
plea. Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa.
Super. 2002) (citing Pa.R.Crim.P. 590). Under Rule 590, the
court should confirm, inter alia, that a defendant understands:
(1) the nature of the charges to which he is pleading guilty; (2)
the factual basis for the plea; (3) he is giving up his right to trial
by jury; (4) and the presumption of innocence; (5) he is aware
of the permissible ranges of sentences and fines possible; and
(6) the court is not bound by the terms of the agreement unless
the court accepts the plea. Commonwealth v. Watson, 835
A.2d 786 (Pa. Super. 2003). The reviewing [c]ourt will evaluate
the adequacy of the plea colloquy and the voluntariness of the
resulting plea by examining the totality of the circumstances
surrounding the entry of that plea. Commonwealth v.
Muhammad, 794 A.2d 378 (Pa. Super. 2002). Pennsylvania
law presumes a defendant who entered a guilty plea was aware
of what he was doing, and the defendant bears the burden of
proving otherwise. Pollard, supra.Prendes, 97 A.3d at 351-354 (parallel citations omitted).
Initially, we agree with the Commonwealth that Appellant’s request to
withdraw his plea must be judged under the more stringent “manifest
injustice” standard since Appellant was aware of the sentence he would
receive as a result of his guilty pleas to indecent assault and corruption of a
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minor. The notes of testimony from Appellant’s plea hearing reflect that
Appellant executed a written plea agreement and that the trial court
thoroughly examined Appellant’s comprehension of the terms of that
agreement. In response to questions posed by the trial court, Appellant
stated that: (1) he recognized the agreement; (2) he reviewed it with trial
counsel; (3) trial counsel explained it to him; (4) he understood trial
counsel’s explanation of the document; and, (5) he freely and voluntarily
signed the agreement. N.T., 7/19/13, at 4-5. On the first page of the
document, under the heading “Plea Bargain or Agreement,” the agreement
states that the district attorney promised to recommend a sentence of two
to four years’ confinement followed by three years of state sex-offender
probation.4 Written Guilty Plea Colloquy, 7/19/13. Appellant, defense
counsel, the district attorney, and the trial court signed the agreement. Id.At the conclusion of Appellant’s plea hearing, the trial court accepted the
negotiated plea agreement as having been knowingly, voluntarily, and
intelligently entered by Appellant. N.T., 7/19/13, at 8-9. For each of these
reasons, we conclude that, as in Prendes, the “manifest injustice” standard
should apply since Appellant was fully aware of the sentence he would
receive because of the guilty pleas that he entered. See Prendes, 97 A.3d
at 354 (manifest injustice standard applies where defendant’s plea
____________________________________________
4
Ultimately, the trial court imposed a sentence that conformed to the terms
of Appellant’s negotiated guilty plea.
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agreement includes negotiated sentence, trial court accepts guilty plea with
the negotiated sentence, and defendant is fully aware of sentence he would
receive).
We further conclude that, because Appellant tendered his guilty pleas
in a knowing, voluntary, and intelligent fashion, he failed to establish that
enforcement of his guilty pleas resulted in a manifest injustice. Relevant to
this conclusion, we cite with approval the following findings of the trial court.
On July 19, 2014, [Appellant] appeared before the [t]rial [c]ourt
and at that time, he entered a guilty plea to the charges of
indecent assault and corruption of a minor. Ancillary to his
guilty plea, [Appellant] was subjected to thorough written and
oral colloquies. The [t]rial [c]ourt reviewed the terms of the
written guilty plea agreement with [Appellant] and thoroughly
questioned [Appellant] as to [his] ability to understand, and his
actual understanding of, the written plea agreement and what it
meant to plead guilty. Pursuant to the written and oral
colloquies, [Appellant] acknowledged the following facts.
[Appellant] completed 11 years of school. He could read, write
and understand the English language. He was not currently, nor
had he ever, treated for mental illness. He was not under the
influence of any substances, including prescribed medications,
which would interfere with his ability to understand what was
going on. He had reviewed the written plea agreement with his
attorney, who had explained the terms of the agreement. He
understood the terms of the agreement. He was aware of his
rights and he understood the ramifications of the plea agreement
upon those rights. [In particular, the trial court established that
Appellant understood: (1) the maximum penalties and fines for
his offenses; (2) his absolute right to proceed to trial before a
judge or a jury; (3) his right to select 12 jurors from the
community; (4) that any jury would have to reach a unanimous
verdict; (5) that his guilty pleas extinguished his right to proceed
to trial; (6) that the district attorney would have to prove his
guilt beyond a reasonable doubt; (7) that his guilty pleas
extinguished his right to challenge inculpatory evidence; (8) that
a guilty plea could result in a violation of any parole or
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probationary sentence he was serving; (9) that his guilty pleas
extinguished certain pre-trial rights such as the right to seek
suppression of inculpatory evidence; and, (10) that his guilty
pleas limited the scope of any appeal. N.T., 7/19/13, at 5-8.
Appellant] did not have any questions of the [c]ourt. He was
aware of the facts of the case, which had been read to him. He
committed the crimes of indecent assault and corruption of a
minor and he was voluntarily pleading guilty to those crimes.
Following the colloquies, the [t]rial [c]ourt accepted [Appellant’s]
guilty plea[s], finding that [Appellant’s] decision to plead guilty
was made knowingly, intelligently and voluntarily. Sentencing
was deferred pending Megan’s Law Assessment. The [t]rial
[c]ourt inquired as to whether a mental health evaluation was
needed. [Appellant’s] counsel responded that he did not think
so and [Appellant], himself, did not indicate otherwise.
Trial Court Opinion, 8/28/14, at 1-4 (not paginated). We are satisfied,
based on the record before us, that Appellant entered valid guilty pleas to
indecent assault and corruption of minors on July 19, 2013.
Even if we were to apply the more lenient “fair and just reason”
standard, we would conclude that Appellant is not entitled to relief.
Appellant presented his request to withdraw his guilty pleas during the
following exchange that took place at his December 6, 2013 sentencing
hearing.
THE COURT: Counsel?
[DEFENSE COUNSEL]: Your Honor, I have a motion to withdraw
my client’s guilty plea. I’ve talked to him. He is maintaining his
innocence. There is some confusion on the deal and after
consideration, he is not interested.
THE COURT: What confusion is there on the deal?
[DEFENSE COUNSEL]: Your Honor, my client has mental health
issues. And after talking to him, it seems like that was what the
problem was when he originally accepted the offer.
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THE COURT: That’s still not clear. That’s pretty vague to me,
[DEFENSE COUNSEL]: Okay. Well, I mean, he will address the
[c]ourt as well.
THE COURT: Okay.
[APPELLANT]: I just got new evidence on the case.
THE COURT: That has nothing to do with mental health issues.
[APPELLANT]: No, I do. I ain’t too good, you know, reading and
writing and something like that. I’ve been taking medication
since I was five years old. I just wasn’t sure; you know what
I’m saying? You know, in a situation like that I was confused,
sir. I was confused. I apologize.
THE COURT: Counsel?
[APPELLANT]: I need some help.
THE COURT: Counsel?
N.T., 12/6/13, at 3-4.
Based on the preceding exchange, it is evident that, while defense
counsel made a passing reference to Appellant’s actual innocence as a basis
to grant the motion to withdraw, Appellant never mentioned his actual
innocence as grounds for relief.5 On their face, Appellant’s statements to
the trial court referred only to unspecified new evidence, mental health
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5
Read in context, even trial counsel’s statements to the trial court suggest
that mental health issues, not actual innocence, lay at the root of Appellant’s
motion to withdraw his guilty pleas. See N.T., 12/6/13, at 3 (“Your Honor,
my client has mental health issues. And after talking to him, it seems like
[Appellant’s mental health issues were] what the problem was when
he originally accepted the offer.”) (emphasis added).
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issues, difficulty with reading and writing, the use of medication, and
confusion. Appellant, however, specifically disavowed each of these
conditions and/or grounds for relief at his July 2013 plea hearing. In fact,
Appellant nowhere asserted his actual innocence, disputed the factual basis
for his pleas, or declared that he did not commit the instant offenses.
Because Appellant never asserted his actual innocence, he failed to offer a
fair and just reason in support of the withdrawal of his guilty pleas.
Compare Commonwealth v. Carrasquillo, 78 A.3d 1120, 1123 (Pa.
Super. 2013) (en banc) (allowing defendant to withdraw guilty plea where,
despite rambling and outlandish statements, defendant asserted his actual
innocence by declaring, “[he] didn’t commit this crime”), appeal granted, 86
A.3d 830 (Pa. 2014). For each of these reasons, we hold that the trial court
did not abuse its discretion in denying Appellant’s motion to withdraw his
guilty pleas.
Judgment of sentence affirmed. Commonwealth’s application to seal
certified record granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2015
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