Com. v. Washington, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TANIKA WASHINGTON :
:
Appellant : No. 379 EDA 2023
Appeal from the Judgment of Sentence Entered October 25, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0000259-2020
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 14, 2023
Appellant Tanika Washington appeals from the October 25, 2022
judgment of sentence entered in the Court of Common Pleas of Philadelphia
County (“trial court”), following her negotiated guilty plea to simple assault
and conspiracy to commit simple assault.1 Upon review, we affirm.
The facts and procedural history of this case are undisputed. Briefly,
following an altercation that resulted in Appellant reaching over and punching
a person in the face multiple times, she was charged with and pled guilty to
the above-referenced crimes on October 25, 2022. Consistent with the terms
of the negotiated guilty plea, the trial court sentenced Appellant to two years’
probation. On November 4, 2022, Appellant filed a post-sentence motion to
withdraw the guilty plea, which the trial court denied on January 24, 2023
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1 18 Pa.C.S.A. §§ 2701(a) and 903.
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following a hearing. Appellant timely appealed. The trial court directed her
to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal.
Appellant complied, challenging the validity of her guilty plea based on
improper advice of counsel. In response, the trial court issued a Pa.R.A.P.
1925(a) opinion.
On appeal, Appellant presents a single issue for our review.
[I.] Whether the trial court erred in denying Appellant’s post-
sentence motion to withdraw her guilty plea where the record
unequivocally shows that trial counsel incorrectly advised
Appellant that she would be eligible to have the charges of
conviction fully expunged when she finished her probation?
Appellant’s Brief at 7.
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.
Commonwealth v. Unangst, 71 A.3d 1017, 1019 (Pa. Super. 2013)
(quotation omitted); see Commonwealth v. Broaden, 980 A.2d 124, 128
(Pa. Super. 2009) (noting that we review a trial court’s order denying a motion
to withdraw a guilty plea for an abuse of discretion), appeal denied, 606 Pa.
644, 992 A.2d 885 (2010). Although no absolute right to withdraw a guilty
plea exists in Pennsylvania, the standard applied differs depending on whether
the defendant seeks to withdraw the plea before or after sentencing. When a
defendant seeks to withdraw a plea after sentencing, he “must demonstrate
prejudice on the order of manifest injustice.” Commonwealth v. Yeomans,
24 A.3d 1044, 1046 (Pa. Super. 2011). In Commonwealth v. Prendes, 97
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A.3d 337, 352 (Pa. Super. 2014), impliedly overruled on other grounds
by Commonwealth v. Hvizda, 632 Pa. 3, 116 A.3d 1103, 1106 (2015), we
explained that a defendant may withdraw his guilty plea after sentencing “only
where necessary to correct manifest injustice.” Prendes, 97 A.3d at 352
(citation omitted). Thus, “post-sentence motions for withdrawal are subject
to higher scrutiny since the courts strive to discourage the entry of guilty pleas
as sentence-testing devices.” Commonwealth v. Flick, 802 A.2d 620, 623
(Pa. Super. 2002).
“Manifest injustice occurs when the plea is not tendered knowingly,
intelligently, voluntarily, and understandingly.” Commonwealth v. Kpou,
153 A.3d 1020, 1023 (Pa. Super. 2016) (citation omitted). In determining
whether a plea is valid, the court must examine the totality of circumstances
surrounding the plea. Id. “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.” Id.Thus, to be valid, a plea must be voluntary, knowing, and intelligent.
Commonwealth v. Persinger, 615 A.2d 1305, 1307 (Pa. 1992). To ensure
these requirements are met, Rule 590 of the Pennsylvania Rules of Criminal
Procedure requires that a trial court conduct a separate inquiry of the
defendant before accepting a guilty plea. It first requires that a guilty plea be
offered in open court. The rule then provides a procedure to determine
whether the plea is voluntarily, knowingly, and intelligently entered. As the
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Comment to Rule 590 provides, at a minimum, the trial court should ask
questions to elicit the following information:
(1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to
trial by jury?
(4) Does the defendant understand that he or she is presumed
innocent until found guilty?
(5) Is the defendant aware of the permissible range or sentences
and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge accepts
such agreement?
Pa.R.Crim.P. 590, Comment.2 In Yeomans, this Court explained:
In order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences. This
determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Thus, even
though there is an omission or defect in the guilty plea colloquy,
a plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had
a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.
Yeomans, 24 A.3d at 1047 (Pa. Super. 2011) (citation omitted).
The longstanding rule of Pennsylvania law is that a defendant may
not challenge his guilty plea by asserting that he lied while under
oath, even if he avers that counsel induced the lies. A person who
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2The Comment also includes a seventh question, which is applicable only
when a defendant pleads guilty to murder generally.
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elects to plead guilty is bound by the statements he makes in open
court while under oath and may not later assert grounds for
withdrawing the plea which contradict the statements he made at
his plea colloquy. . . . [A] defendant who elects to plead guilty
has a duty to answer questions truthfully.
Id. “The law does not require that [the defendant] be pleased with the
outcome of his decision to enter a plea of guilty: All that is required is that
[his] decision to plead guilty be knowingly, voluntarily and intelligently made.”
Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc)
(citations and internal quotation marks omitted).
Here, our review of the record indicates that Appellant is not entitled to
relief because she failed to furnish credible evidence that her plea counsel
induced her into the negotiated guilty plea. As the trial court reasoned:
On October 24, 2022, a jury was selected. However, []
immediately before the commencement of trial, Appellant opted
to accept a plea bargain. Subsequently, after the trial court
provided Appellant ample time to discuss matters with her
counsel, Appellant was colloqued both orally and in writing
regarding her rights and the legal effects of the guilty plea. The
trial court found that Appellant ple[d] guilty knowingly, voluntarily
and intelligently, and accordingly, accepted the plea. Appellant
was sentenced pursuant to the negotiations between counsel and
Appellant.
During the oral colloquy, Appellant additionally affirmed that she
was: (1) forty years old; (2) engaged in graduate school studies;
(3) not under the influence of any medications, drugs or alcohol
at present time; (4) never treated for a mental illness; (5) in no
way threatened by anyone to enter into the plea; (6) not promised
anything in exchange for entering the plea beyond its terms; (7)
cognizant that entering into the plea would waive her right to a
jury trial, to which a panel had already been selected for her; (8)
that she understood the nature of the charges and the possible
maximum sentences permitted by law for each count in the plea;
(9) aware that her appellant rights would be limited as a result of
entering the plea; (10) had reviewed the written colloquy with her
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counsel prior to both initially and signing it on pages four and five
of the colloquy[FN1]; and (11) satisfied with her attorney, Kendra
McCrea, (hereafter “Attorney McCrea”) with whom Appellant had
been provided an opportunity to confer and resolve any questions
she may have had prior to signing and agreeing to the plea.
[FN1: Appellant also affirmed on the written colloquy
that Attorney McCrea, “explained to you the elements
of each of the above offense(s), and that, for each
offense, the District Attorney would have to prove
those elements beyond a reasonable doubt at trial in
order to convict you for that offense?”]
Before sentencing, Appellant was presented with the opportunity
to speak to the trial court at her discretion. Appellant stated, “this
is an isolated incident that happened. And (sic) it won’t happen
again.” On the count of simple assault, Appellant was sentenced
to two (2) years reporting probation by phone. No further penalty
was imposed on the count of conspiracy to commit simple assault.
On November 4, 2022, by and through her new counsel Zak
Goldstein (hereafter “Attorney Goldstein”), Appellant filed a post-
sentence motion to withdraw guilty plea. On January 13, 2023, a
hearing was held on the motion. Appellant testified that she
sought the withdrawal of her plea because she was, “innocent for
starters” and that she had been assured by Attorney McCrea that
her entire criminal record would be expunged following the
termination of her probation.
During the hearing, the trial court asked several questions wherein
Appellant again answered in the affirmative when asked if she
agreed she was not forced to take the plea, was promised nothing
beyond the contents in the offer, and if she was satisfied with her
attorney. The trial court also inquired if Appellant had heard the
facts asserted against her by the Commonwealth and admitted to
them on October 25, 2022. Appellant claimed that she “admitted
to self-defense.” However, when asked again by the court if she
heard the specific allegation that she punched the complaining
witness and had indeed admitted to it, she responded, “I don’t
remember that.” Finally, the court asked Appellant about the text
messages in which Appellant had asked Attorney McCrea, “is
misdemeanor conspiracy able to be expunged as well or just the
assault?” When asked about the discrepancy between her stating
on direct examination that Attorney McCrea had assured Appellant
she would receive “complete expungement” yet in her text
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messages she inquired if a certain part of her record could be
expunged, Appellant responded, “I’m not sure why I put that.” At
the end of the hearing on the motion, the trial court rendered a
finding that Appellant’s testimony to be incredulous and that, “the
text message speaks for itself, it clearly indicates to [the court]
that Miss McCrea at no point in time ever said complete
expungement.” The court further placed on the record a
determination that Appellant was in fact properly advised by
Attorney McCrea regarding the ability to obtain a partial
expungement of the charges brought against Appellant.
Trial Court Opinion, 3/1/23, at 2-4 (unnecessary capitalizations and record
citations omitted) (emphasis in original) (unpaginated).
Based on the forgoing, we discern no basis to disagree with the trial
court’s finding that Appellant’s trial evidence, including her testimony, was not
credible insofar as she invites us to believe that her plea counsel provided her
with incorrect legal advice regarding complete expungement and that she
relied upon that incorrect advice to enter into the negotiated guilty plea. See
Commonwealth v. Moser, 921 A.2d 526, 530 (Pa. Super. 2007)
(recognizing that “[a]s the fact-finder [is] in the best position to assess the
credibility of the witnesses’ testimony,” we “will not reverse a trial court’s
credibility determination absent the court's abuse of discretion as fact
finder.”). The trial court specifically found:
Appellant offered no credible evidence to support a finding that
Attorney McCrea provided Appellant with erroneous legal advice.
[D]espite Appellant’s contention that the text messages vindicate
her position that she was given incorrect legal advice regarding
the expungement of her entire criminal record, the messages fail
to support Appellant’s position. In Appellant’s message to
Attorney McCrea, Appellant asked “is misdemeanor conspiracy
able to be expunged as well or just the assault?” The trial court
correctly analyzed the phraseology “as well” as demonstrative
Appellant was quite clear that she was not assured that the
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entirety of her record would be expunged, but only part of it. As
important, the trial court’s determination of Appellant’s credibility
cannot be isolated to the text messages. It must be done through
a totality of the circumstances analysis. Through such a
determination, it is evident that Appellant’s contradicting
testimony is a clear indication that her assertion of the facts was
indeed unreliable. Therefore, there is no basis to conclude
Appellant was subjected to manifest injustice.
Trial Court Opinion, 3/1/23, at 6-7 (unpaginated). Separately, her claim that
her guilty plea was involuntary, unintelligent, or unknowing lacks merit, as it
was belied by her written questionnaire and oral colloquy, as detailed above.
Indeed, Appellant is bound by the statements she made at the time of her
guilty plea. Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super.
2012) (A defendant is bound by the statements made during the plea colloquy,
and a defendant may not later offer reasons for withdrawing the plea that
contradict statements made when he pleaded guilty). Accordingly, we cannot
conclude that the trial court abused its discretion in denying Appellant’s post-
sentence motion to withdraw the guilty plea. Appellant does not obtain relief.
Judgment of sentence affirmed.
Date: 11/14/2023
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