Com. v. Bishop, J. ( 2023 )

J-S34025-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA KEITH BISHOP :
:
Appellant : No. 342 WDA 2023
Appeal from the Judgment of Sentence Entered January 28, 2022
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0001758-2021
BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED: December 28, 2023
Appellant, Joshua Keith Bishop, appeals from the judgment of sentence
imposed on January 28, 2022 in the Court of Common Pleas of Erie County
following entry of his open guilty plea to aggravated assault, 18 Pa.C.S.A.
§ 2702(a)(4). Appellant contends that the trial court erred by failing to permit
him to withdraw his guilty plea prior to sentencing and that his sentence was
manifestly excessive because the court failed to consider his ability to pay
costs. Following review, we affirm.
The record reflects that on April 28, 2021, Appellant was charged in an
eight-count complaint with, inter alia, attempted murder as well as aggravated
assault as both a first- and second-degree felony. The charges stemmed from
a shooting on April 27, 2021 that followed a verbal altercation between
Appellant and his victim, Nicholas Keesling. The complaint reflects that
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Appellant ‘was in possession of a .38 caliber revolver which he did fire one
shot into the floor . . . and an additional shot which did strike Keesling in the
chest. Keesling did require immediate life saving medical procedures[.]”
Criminal Complaint (Brief Summary of Facts), 4/28/21, at 1-2 (unnumbered).
We note that Appellant was licensed to carry the firearm.
At a hearing held on October 28, 2021, Appellant entered into an open
guilty plea to one count of aggravated assault as a second-degree felony. The
Commonwealth proposed a state sentence of one-to-two years in prison. At
the conclusion of the hearing, the trial court ordered a pre-sentence
investigation report. Appellant’s sentencing hearing was conducted on
January 28, 2022.
With regard to Appellant’s guilty plea, the trial court explained:
A review of the record shows that on January 19, 2022,
[Appellant] sent a letter to his plea counsel requesting to withdraw
his guilty plea because he was “not guilty of the charge(s).” No
motion to withdraw guilty plea was filed.
...
In this case, no motion to withdraw guilty plea was filed.
[Appellant’s] sole basis, in his letter, for requesting to withdraw
the plea was based on a claim of innocence. At the time of his
sentencing, the court discussed the matter thoroughly with
[Appellant].
Trial Court Opinion, 3/1/23, at 1-2.
In an excerpt from the sentencing hearing quoted in the trial court’s
opinion, the court explained that Appellant sent his letter requesting
withdrawal of the guilty plea to the Erie County Clerk of Courts. The court
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advised Appellant that “when you have an attorney, that’s not going to work.
You have to go through your attorney, and your attorney has to file a motion
to withdraw the plea.” Id. at 3 (quoting Notes of Testimony, Sentencing
[“N.T.”], 1/28/22, at 7).
The trial judge proceeded to explain that he would permit Appellant to
file a motion to withdraw his plea, in which case a hearing would be held on
the motion. Further discussion ensued, during which it was explained that the
filing of a motion to withdraw the plea would prompt the withdrawal of the
plea deal offered to Appellant. The deal was a “global deal” that included a
separate domestic case. The prosecutor explained, “They are separate cases.
It’s just we gave you a very large break on one of them, due to you pleading
on the other one. So, if the consideration to us goes away, we can’t give you
that benefit anymore. So, just want to make you[] aware of that. Id. at 4
(quoting N.T., 1/28/22, at 11). The court then asked Appellant what he
wanted to do, to which Appellant responded, “I’m going to go through with
this. I’m going to go through with sentencing with both pleas.” Id. at 5
(quoting N.T., 1/28/22, at 11). The court then imposed the sentence of one-
to-two years in prison, with credit for time served, followed by concurrent
sentences of probation on both dockets. In addition, the court imposed costs
totaling $6,511.75.
No direct appeal was taken but Appellant later sought, and was awarded,
reinstatement of his direct appeal rights and an appeal was subsequently filed
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with this Court. Both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant presents two issues for our consideration:
The trial court erred in failing to allow [Appellant] to withdraw his
plea when he requested that trial counsel file a motion to withdraw
his plea prior to sentencing[.]
The sentence in this case was manifestly excessive and clearly
unreasonable and was illegal, when the trial court failed to
consider during his sentencing his ability pay fines or court costs[.]
Appellant’s Brief at 2.
In his first issue, Appellant contends that the trial court erred by failing
to permit him to withdraw his guilty plea prior to sentencing. As this Court
observed in Commonwealth v. Hart, 174 A.3d 660 (Pa. Super. 2017), “It is
well-settled that the decision whether to permit a defendant to withdraw a
guilty plea is within the sound discretion of the trial court.” Id. at 664.
However, as noted above, “[i]n this case, no motion to withdraw guilty plea
was filed.” Trial Court Opinion, 3/1/23, at 2. Nevertheless, Appellant claims
that he did not have an opportunity “to share with the trial court his reasons
for requesting a withdrawal of his plea, as trial counsel did not heed his request
in his letter by filing a motion to withdraw.” Appellant’s Brief at 6.
The record belies Appellant’s assertion. The trial judge specifically
stated, “I’ll allow you to file the motion. I’m not saying that we’ll let you
withdraw the pleas. But I’ll at least allow you to file the motion, and we’ll
have a hearing on it. Umm, but that’s up to you and your counsel.” N.T.,
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1/28/22, at 7. Subsequently, after being advised that his plea deal would be
withdrawn if he sought to withdraw his plea, Appellant stated, “I’m going to
go through with this. I’m going to go through with sentencing with both
pleas.” Id. at 11.
Because Appellant did not file a motion to withdraw his guilty plea, he
cannot complain that the trial court erred in “failing to allow [him] to withdraw
his plea.” Appellant’s Brief at 4. Appellant’s first issue fails.
In his second issue, Appellant asserts that his sentence was manifestly
excessive, unreasonable, and illegal because the trial court failed to consider
his ability to pay costs imposed at the time of sentencing. He does not
challenge the length, reasonableness, or legality of the term of his
incarceration or the probationary sentences imposed. Rather, he “argues that
his sentence was manifestly excessive and clearly unreasonable due to the
fact that the costs lodged against him . . . was beyond his ability to pay and
is an excessive punishment.” Appellant’s Brief at 4.
As this Court explained in Commonwealth v. Mulkin, 228 A.3d 913(Pa. Super. 2020):
In addition to the sentencing alternatives under section 9721(a),
the Sentencing Code provides for mandatory restitution to the
victim and mandatory payment of costs. Unlike restitution
imposed under 42 Pa.C.S. §§ 1106, 9721(c), and unlike fines,
which are both part of a defendant’s sentence, 42 Pa.C.S.
§ 9726(a), (b)(1)-(2), “a direction to pay costs in a criminal
proceeding is not part of the sentence, but is an incident of
the judgment. Costs do not form a part of the penalty imposed
by the statutes providing for the punishment of criminal
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offenses[.]” [Commonwealth v. Soudani, 165 A.3d 709, 711
(Pa. Super. 1960).]
Id. at 919 (emphasis added; footnotes omitted).
In Commonwealth v. Lopez, 280 A.3d 887 (Pa. 2022), our Supreme
Court specifically considered whether Pa.R.Crim.P. 706(C) “requires a trial
court to consider a defendant’s ability to pay prior to imposing mandatory
court costs at sentencing[.]” Id. at 894 (citation omitted).1 The Court
observed that “[t]he proper interpretation of a rule of criminal procedure is a
question of law, for which the standard of review is de novo and the scope of
review is plenary.” Id. (citing Commonwealth v. Hann, 81 A.3d 75, 65 (Pa.
2013)). After conducting its review, the Court announced:
[I]t is apparent from multiple decisions by this Court and the
Superior Court, as well as the plain language of the rule, its
comment, and statutes in pari materia, that Rule 706(C) does not
require consideration of the defendant’s ability to pay prior to the
imposition of mandatory court costs at sentencing.
Id. at 902.2
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1 Rule 706(C) provides: “The court, in determining the amount and method of
payment of a fine or costs shall, insofar as is just and practicable, consider
the burden upon the defendant by reason of the defendant’s financial means,
including the defendant’s ability to make restitution or reparations.”
Pa.R.Crim.P. 706(C).
2 Although it is not necessary to determine the ability to pay prior to imposing
costs, we note that an ability-to-pay determination would be required before
sanctions could be imposed upon failure to pay those costs. In accordance
with Rule 706(A), “A court shall not commit the defendant to prison for failure
to pay a fine or costs unless it appears after hearing that the defendant is
financially able to pay the fine or costs.” As the Court stated in Lopez, “Rule
(Footnote Continued Next Page)
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Because the costs imposed on Appellant were not part of his sentence,
and because Rule 706(C) does not require consideration of a defendant’s
ability to pay prior to imposition of mandatory costs at sentencing, Appellant
has failed to articulate any cognizable challenge to his sentence. Appellant’s
second issue fails.
Judgment of sentence affirmed.
12/28/2023
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706 requires the court to determine the defendant’s ability to pay prior to
committing him to prison for a default but no sooner.” Id. at 901.
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