Com. v. Mastin, E. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EMILY MASTIN :
:
Appellant : No. 1590 EDA 2022
Appeal from the Judgment of Sentence Entered May 2, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000645-2022
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 15, 2023
Appellant, Emily Mastin, appeals from the judgment of sentence entered
by the Montgomery County Court of Common Pleas on May 2, 2022. She
claims that the trial court erred in accepting her guilty plea. After careful
review, we affirm the judgment of sentence.
On January 19, 2022, police found Appellant and John Collins (“Co-
defendant”) in an abandoned, condemned building in Norristown with a
sleeping bag and food. The Commonwealth alleged that they had broken into
and intentionally damaged the property with spray paint and indelible
markers. Accordingly, the Commonwealth charged Appellant with Burglary,
Criminal Trespass, and Criminal Mischief.1
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1 18 Pa.C.S. §§3502(a)(2); 3503(a)(1)(ii); 3304(a)(4), respectively.
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On March 22, 2022, Appellant entered into a negotiated guilty plea
addressing various charges in six cases.2 At the instant docket, Appellant pled
guilty to Criminal Trespass, and the Commonwealth agreed to nolle pros the
remaining charges.3 As relevant to Appellant’s issues on appeal, Appellant’s
written colloquy expressly questioned whether Appellant knew that she had
“a right to a trial by jury[,]” to which Appellant answered affirmatively.4
Moreover, during the guilty plea hearing, Appellant repeated her
understanding in response to the following question from her counsel:
Q: You understand that . . . you have a right to go to trial. At
trial, obviously, you would have the assistance of me, your
attorney. I would get to confront witnesses on your behalf, to
challenge the evidence on your behalf. You could testify at trial,
if you wanted, or you could exercise your right to remain silent
and no inference could be drawn about that by the Judge or jury,
if you choose to remain silent. And at trial, of course, the
Commonwealth has the burden to prove your guilt on each and
every one of your matters beyond a reasonable doubt, that you
don’t have to prove your innocence. You understand those are
the trial rights that you’re giving up by pleading guilty?
A: Yes, I understand.
N.T., 3/22/22, at 8-9. Appellant’s attorney additionally confirmed that, if
asked, Appellant would reiterate the answers she provided in the written
colloquy.
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2The record indicates that the Commonwealth and Appellant entered into a
negotiated plea agreement as to the length of incarceration and probation,
while disputing the restitution amount. N.T., 3/22/22, at 3.
3Appellant also pled guilty to controlled substance possession and harassment
offenses charged under different docket numbers.
4 Guilty Plea Questionnaire, 3/22/22, at 3 (Questions 16 and 17).
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After concluding that Appellant “knowingly, intelligently, and
voluntarily” entered the plea, the trial court accepted Appellant’s plea.5 The
court then sentenced Appellant, in accordance with the terms of the plea
agreement, to time served to 23 months of incarceration followed by one year
of probation.6 The parties agreed to stay the determination of restitution until
a hearing on April 13, 2022.
At the April 13, 2022 restitution hearing, the court initially vacated
Appellant’s sentence, recognizing that Appellant had a “right to have the
restitution determined at sentencing.”7 While the court intended to reimpose
the sentence that day, the court bifurcated the hearing to allow for
transcription of the guilty plea hearing to resolve a factual dispute regarding
whether Appellant’s plea extended to the entirety of the $140,700 of property
damage alleged by the property owner or only to damages related to the
January 19, 2022 arrest date.
On May 2, 2022, the court resumed the restitution hearing, at which the
Commonwealth substantially reduced the restitution request to $9,200 to
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5 N.T., 3/22/22, at 17.
6 Id. at 17-18. On the other five dockets, the court imposed one year of
probation at each docket, consecutive to the instant sentence but concurrent
with each other.
7N.T., 4/13/22, at 3. See Commonwealth v. Muhammed, 219 A.3d 1207,
1213 (Pa. Super. 2019) (holding that “[p]ursuant to [18 Pa.C.S.
§ 1106(c)(2)], the trial court had no authority to impose restitution while
deferring the amount and method of payment for decision at a later date”).
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remedy the graffiti found on the day of Appellant’s arrest. Appellant’s counsel
did not contest this amount. However, in her allocution prior to reimposition
of the sentence, Appellant asserted allegations against the property owner.
In response, the court recessed the hearing to allow Appellant to speak with
her attorney and consider withdrawing her plea. The court explained: “I would
certainly allow you to withdraw the plea if that’s what you want to do. You
are not obligated to proceed here today.”8
After consulting with her attorney, Appellant indicated that she did not
wish to withdraw her plea. Upon request of the court, counsel engaged in a
second colloquy to confirm Appellant’s decision. The court again stated that
it would allow her to withdraw the plea and cautioned Appellant of the higher
standard for withdrawing after sentencing. The court then questioned
Appellant, asking if her plea was “a knowing, intelligent, and voluntary plea[;]”
if her decision “to stick with [the plea] and not withdraw it” was also of her
“own free will[;]” and if she had sufficient time to speak with counsel and was
satisfied with his advice.9 Appellant answered these inquiries affirmatively.
The court then reimposed the sentence of time served to twenty-three
months of incarceration and one year of probation. After ascertaining
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8 N.T., 5/2/22, at 7.
9 Id. at 14.
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Appellant’s inability to pay costs and fees, the court set restitution in the
amount of $9,200 “to be paid joint and several” with Co-defendant.10
On May 11, 2022, Appellant filed a motion to withdraw her plea, claiming
that the guilty plea was invalid because “it was not made knowingly,
intelligently, and voluntarily.”11 The trial court denied her post-sentence
motion to withdraw her plea on May 20, 2022.
Appellant filed her Notice of Appeal on June 13, 2022. The court and
Appellant complied with Pa.R.A.P. 1925. On appeal to this Court, Appellant
presents the following question:
Did the lower court err in accepting [Appellant’s] guilty plea since
the plea was not knowing and voluntarily entered because
[Appellant’s] oral guilty plea colloquy failed to explain that
[Appellant] had a right to cross-examine witnesses at trial and
failed to explain that [Appellant] had a right to a jury trial?
Appellant’s Br. at 3.
A.
In raising a challenge to the voluntariness of her plea, Appellant actually
challenges the trial court’s denial of her post-sentence motion to withdraw her
guilty plea.12 “[T]he decision whether to permit a defendant to withdraw a
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10 Id. at 18.
11 Post-Sentence Motion to Withdraw Guilty Plea, 5/11/22, at ¶ 7.
12 We note that, by filing a post-sentence motion, Appellant properly
preserved her challenge to the voluntariness of her guilty plea. See
Pa.R.Crim.P. 720(B)(1)(a)(i); Commonwealth v. Monjaras-Amaya, 163
A.3d 466, 469 (Pa. Super. 2017) (observing that “[a] defendant wishing to
(Footnote Continued Next Page)
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guilty plea is within the sound discretion of the trial court.” Commonwealth
v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017). Our review is, thus, limited to
whether the court abused its discretion. An abuse of discretion occurs not due
to merely “an error of judgment” but when the judgment is “manifestly
unreasonable[,] where the law is not applied[,] or where the record shows
that the action is a result of partiality, prejudice, bias[,] or ill will.”
Commonwealth v. Dinell, 270 A.3d 530, 533 (Pa. Super. 2022) (citation
omitted).
A defendant seeking to withdraw her guilty plea post-sentence, as
opposed to pre-sentence, “must demonstrate that manifest injustice would
result” from the denial of that motion to withdraw. Id. (citation omitted).
This higher level of scrutiny is intended “to discourage entry of guilty pleas as
sentence-testing devices.” Id. (citation omitted). “Manifest injustice may be
established if the plea was not tendered knowingly, intelligently, and
voluntarily.” Id. (citation omitted). In considering the validity of a plea,
courts look to “the totality of the circumstances surrounding the plea.” Id.(citation omitted).
Prior to accepting a plea agreement, a trial court must “conduct a
separate inquiry of the defendant on the record to determine whether the
defendant understands and voluntarily accepts the terms of the plea
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challenge the voluntariness of a guilty plea on direct appeal must either object
during the plea colloquy or file a motion to withdraw the plea within ten days
of sentencing” (citation omitted)).
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agreement on which the guilty plea . . . is based.” Pa.R.Crim.P. 590(B)(2).
Specifically, “[a]t a minimum[,]” courts must inquire as to whether the
defendant understands the following: “(1) the nature of the charges to which
he is pleading guilty; (2) the factual basis for the plea; (3) his right to trial by
jury; (4) the presumption of innocence; (5) the permissible ranges of
sentences and fines possible; and (6) that the court is not bound by the terms
of the agreement unless the court accepts the agreement.” Pa.R.Crim.P. 590
cmt.; Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016)
(summarizing Pa.R.Crim.P. 590 cmt.).
B.
Appellant asks this Court to vacate her guilty plea, asserting that the
trial court erred in accepting her plea. Appellant’s Br. at 7. She contends that
the plea colloquy failed to explain her right to a trial by jury and her right to
cross-examine witnesses. Id. Specifically, while Appellant acknowledges that
the oral colloquy informed Appellant of her “right to go to trial[,]” she faults
the court for not specifying that she had a “right to a trial by jury,” as stated
in the Comment to Pa.R.Crim.P. 590. Appellant’s Brief at 5 (quoting N.T.,
3/22/22, at 8). Similarly, while admitting that she acknowledged as part of
her colloquy that her attorney “‘would get to confront witnesses on [her]
behalf[,]’” she contends that the court failed to specify “her right to cross-
examine witnesses.” Id. She rejects reliance on her written colloquy, which
expressly addressed her right to a jury trial, asserting that defendants often
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do not fully understand the documents they sign. Appellant’s Br. at 13.13
Accordingly, she argues that her plea was not knowing and voluntary and asks
this Court to vacate the judgment of sentence, vacate her guilty plea, and
remand for trial. Id.In its Pa.R.A.P. 1925(a) opinion, the court concluded that Appellant’s
plea sufficiently “explained her trial rights, including that she had a right to
confront witnesses against her and that she had a right to a jury trial.” Tr.
Ct. Op., 8/4/22, at 10-11. It opined that it “exercised proper discretion in
accepting Appellant’s guilty plea.” Id.We agree. Appellant’s March 22, 2022 written and oral colloquies
demonstrate that counsel informed Appellant of her right to a jury trial and
her right to confront witnesses. N.T., 3/22/22, at 8-11. Indeed, when
Appellant equivocated at the May 2, 2022 hearing, the court halted the
proceedings, provided Appellant the opportunity to confer with counsel, and
informed Appellant of her ability to withdraw her plea prior to sentencing,
before engaging in a second oral colloquy to determine whether Appellant’s
plea as well as her decision not to withdraw her plea were knowing, voluntary
and intelligent. N.T., 5/2/22, at 8-14.
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13 In support of her rejection of written colloquies, Appellant relies upon
Commonwealth v. Clyburn, 42 A.3d 296, 300 (Pa. Super. 2012). We find
Clyburn inapt as it involved waiver of counsel rather than a guilty plea.
Moreover, neither the oral nor the written colloquies in Clyburn provided the
necessary information. Id. at 301-02. In contrast, the court in the instant
case engaged in two thorough on-the-record colloquies following Appellant’s
completion of a written questionnaire.
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In light of the totality of the circumstances, we conclude that the trial
court did not abuse its discretion in concluding that the plea was valid and in
denying Appellant’s post-sentence motion to withdraw her guilty plea.
Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2023
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