Com. v. Johnson, C. ( 2023 )

J-S38041-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL E. JOHNSON, JR. :
:
Appellant : No. 1388 EDA 2023
Appeal from the Judgment of Sentence Entered April 20, 2023
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003681-2021
BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 23, 2023
Carl E. Johnson, Jr. (Johnson) appeals from the judgment of sentence
imposed in the Court of Common Pleas of Montgomery County (trial court)
following his entry of an open guilty plea to aggravated assault and driving
while operating privilege is suspended or revoked (DUS).1 On appeal, Johnson
challenges the validity of his guilty plea. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2702(a)(3) (attempts to cause or causes bodily injury), 75
Pa.C.S. § 1543(b)(1.1)(i) (driving with blood alcohol content of 0.02% or
greater while license suspended).
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I.
A.
The relevant facts and procedural history of this case are as follows. On
May 9, 2021, Police Officer Andrew Bixler of the Norristown Police Department
stopped Johnson’s vehicle after he observed him racing with another car and
committing multiple traffic violations. During the stop and ensuing altercation,
Johnson ignored Officer Bixler’s commands, repeatedly struck him in the face
and grabbed his throat, obstructing his airway. Backup officers responded to
the scene and were eventually able to gain control of Johnson and take him
into custody. The incident was recorded on police body video cameras. The
Commonwealth charged Johnson with several offenses including two counts
of aggravated assault, strangulation, terroristic threats, driving under the
influence of alcohol and resisting arrest.
Johnson pled guilty to aggravated assault and DUS on September 28,
2022, the day that his jury trial was scheduled to begin. In exchange, the
Commonwealth nolle prossed the remaining charges. During the guilty plea
hearing, Johnson averred that in lieu of going to trial, he had decided to plead
guilty in accordance with the plea agreement offered by the Commonwealth.
(See N.T. Plea Hearing, 9/28/22, at 6). The trial court advised Johnson of his
rights and those he was giving up, including the presumption of innocence and
his right to testify at trial. Johnson confirmed that he reviewed the written
guilty plea colloquy with his attorney and that he understood all of the
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questions and answered them truthfully. During the colloquy with the trial
court, Johnson affirmed that no one forced, coerced or offered him anything
to enter the plea, and that he had made the decision of his own free will. (See
id. at 9-10).
The Commonwealth then reviewed the factual basis for the plea, as
follows:
Q. So you struck Officer Bixler multiple times; is that correct?
A. I don’t remember that.
Q. In watching the videos with your attorney, did you observe
yourself striking Officer Bixler multiple times?
A. I mostly found myself—I held onto him. I got a bad knee and
I was going to fall. He went to throw me to fall, that’s when I
grabbed onto him. I wasn’t trying to fight him.
[Discussion held off the record].
Q. And you understand that did cause Officer Bixler bodily injury?
A. (No response.)
Q. Do you understand that caused Officer Bixler —
A. Yes.
Q. — bodily injury?
A. Yes.
(Id. at 12-13).
In his written guilty plea, Johnson admitted that he “did all the things a
person must have done to be guilty of the crime or crimes to which [he is]
pleading guilty” and that he understood that his plea “is based on factual
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accusations placed in writing by the police and sworn to before a District
Justice[.]” (Written Guilty Plea, 9/28/22, at 3, 6). Johnson averred that he
was entering the plea of his own free will and that the decision to enter it was
his alone. (See id. at 5-6).
B.
The trial court accepted Johnson’s guilty plea as voluntary and deferred
sentencing for preparation of a pre-sentence investigation report. During the
April 20, 2023 sentencing proceeding, Johnson exercised his right of allocution
and asked the court for leniency. Although Johnson acknowledged that he
was drunk and belligerent during the incident, he stated that he was not trying
to fight with or hurt the officer. (See N.T. Sentencing, 4/20/23, at 13-14).
The trial court sentenced Johnson to an aggregate term of two-and-one-half
to five years’ incarceration, followed by two years of probation.
Johnson filed a post-sentence motion on April 26, 2023, requesting the
trial court to reconsider the mitigating factors of his history of drug and alcohol
abuse and mental health issues. The trial court denied the motion on May 3,
2023. Johnson timely appealed and he and the court complied with Rule 1925.
See Pa.R.A.P. 1925(a)-(b). In his 1925(b) statement, Johnson asserted for
the first time trial court error in accepting his guilty plea as voluntary, given
his reluctance to agree to the facts forming the basis for his plea.
In its Rule 1925(a) opinion, the trial court stated that Johnson waived
his challenge to the voluntariness of his plea because he failed to raise it in
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his post-trial motion. (See Trial Court Opinion, 6/26/23, at 3-4). The court
also found, based on the totality of the circumstances including its extensive
colloquy at the hearing, that Johnson’s plea was valid. (See id. at 5).
II.
In his issue on appeal, Johnson challenges the voluntariness of his guilty
plea in light of his reluctance to admit to the acts forming its basis during the
plea hearing. (See Johnson’s Brief, at 9-12). Johnson maintains that his plea
is invalid because he “not only equivocated but clearly denied committing the
acts forming the factual basis for his guilty plea [and] continued to assert his
innocence before sentencing.” (Id. at 11). At the outset, we find that because
Johnson did not raise this issue in the trial court, he cannot raise it for the first
time on appeal. As a result, it is waived. See Pa.R.A.P. 302(a) (issues not
raised in trial court are waived and cannot be raised for first time on appeal).
Even if the issue had been raised, Johnson would not be entitled to
relief.2 “To be valid a guilty plea must be voluntary, knowing and intelligent.”
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2
[P]ost-sentence motions for withdrawal are subject to higher
scrutiny since courts strive to discourage entry of guilty pleas as
sentence-testing devices. A defendant must demonstrate that
manifest injustice would result if the court were to deny his post-
sentence motion to withdraw a guilty plea. Manifest injustice may
be established if the plea was not tendered knowingly,
intelligently, and voluntarily. In determining whether a plea is
valid, the court must examine the totality of circumstances
surrounding the plea. A deficient plea does not per se establish
prejudice on the order of manifest injustice. It is well-settled that
(Footnote Continued Next Page)
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Commonwealth v. Diehl, 61 A.3d 265, 268 (Pa. Super. 2013), appeal
denied, 77 A.3d 1258 (Pa. 2013) (citation omitted). The guilty plea colloquy
must affirmatively show that the defendant understood what the plea entailed
and its consequences, and this determination must be made by examining the
totality of the circumstances. See Commonwealth v. Davis, 191 A.3d 883,
889 (Pa. Super. 2018), appeal denied, 200 A.3d 2 (Pa. 2019). Additionally,
“once a defendant enters a guilty plea, it is presumed that he was aware of
what he was doing.” Commonwealth v. Culsoir, 209 A.3d 433, 437 (Pa.
Super. 2019). “Consequently, defendants are bound by statements they
make during their guilty plea colloquies and may not successfully assert any
claims that contradict those statements.” Id. (citation omitted).
In this case, the record reflects that Johnson, with the assistance of
counsel, was made fully aware of the factual basis for his plea through both
the written and oral colloquies. While Johnson briefly equivocated at the
hearing, he ultimately agreed to the factual basis for the plea and admitted
that he caused Officer Bixler bodily injury. Furthermore, in exchange for
entering the plea, the Commonwealth nolle prossed numerous serious charges
stemming from his assault on Officer Bixler and belligerence during his arrest,
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the decision whether to permit a defendant to withdraw a guilty
plea is within the sound discretion of the trial court.
Commonwealth v. Dinell, 270 A.3d 530, 533 (Pa. Super. 2022) (citation
omitted).
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including strangulation and terroristic threats. Despite Johnson’s claims to the
contrary, the record shows that the plea agreement was his best option under
the circumstances of this case, and the trial court’s extensive colloquy at the
hearing, coupled with the written plea, demonstrate that he entered it
voluntarily, knowingly and intelligently. Therefore, even if properly preserved,
the trial court did not abuse its discretion in finding that the guilty plea was
voluntary.
Judgment of sentence affirmed.
Date: 10/23/2023
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