Com. v. Pagan, N. ( 2024 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NOEL GREGORY PAGAN :
:
Appellant : No. 486 EDA 2024
Appeal from the Judgment of Sentence Entered October 27, 2023
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000771-2022
BEFORE: BOWES, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 13, 2024
Noel Gregory Pagan (Appellant) appeals from the judgment of sentence
imposed following his guilty plea to aggravated assault and possessing an
instrument of crime (PIC).1 We affirm.
On November 15, 2021, Appellant entered his ex-girlfriend’s house,
“entered the bedroom, engaged in a fight with Jermial Denick [(the victim),]
and stabbed [the victim] twelve times[,] resulting in him having a punctured
lung.” N.T., 10/27/23, at 13.
Appellant entered a negotiated guilty plea to aggravated assault and PIC
on October 27, 2023. In exchange, the Commonwealth agreed to nolle prosse
all remaining charges. On the same date, the trial court sentenced Appellant,
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1 18 Pa.C.S.A. §§ 2702(a)(1), 907.
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in accordance with the plea agreement, to an aggregate 7 to 14 years’
imprisonment, with credit for time served.2
On November 14, 2023, Appellant filed an untimely post-sentence
motion requesting to withdraw his guilty plea, and asserting his innocence.
Appellant’s counsel (plea counsel) simultaneously filed a petition to withdraw
from representation. Subsequently, on January 8, 2024, Appellant filed a pro
se Post Conviction Relief Act (PCRA)3 petition alleging plea counsel’s
ineffectiveness. The PCRA court dismissed the PCRA petition “without
prejudice to [Appellant’s] right to re-file upon disposition of the post sentence
motion to withdraw guilty plea, filed on November 11, 2023[,] and pending
before [the] court, or upon exhaustion of his direct appeal rights.” Order,
1/11/24 (some capitalization modified; footnote omitted). The court also
directed the Commonwealth to file a response to Appellant’s post-sentence
motion by January 31, 2024.
Appellant filed a pro se notice of appeal on January 25, 2024, which was
docketed in this Court at 486 EDA 2024. On the same date, Appellant filed in
this Court an application to file an appeal, nunc pro tunc.
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2 Appellant also stipulated to violating a probationary sentence he was then
serving on an unrelated docket. While sentencing Appellant in the instant
matter, the trial court also revoked Appellant’s probation and imposed a 1- to
2-year prison term. The court ordered the revocation sentence to run
concurrently with the sentence imposed on the instant matter.
3 See 42 Pa.C.S.A. §§ 9541-9546.
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The Commonwealth filed a response to Appellant’s post-sentence
motion on February 2, 2024.
On February 15, 2024, the trial court entered an order permitting plea
counsel to withdraw from representation, and appointing Appellant new
counsel. On the same date, the trial court entered an order denying
Appellant’s post-sentence motion to withdraw his guilty plea. Appellant
subsequently filed another pro se PCRA petition alleging plea counsel’s
ineffectiveness. On February 29, 2024, the trial court issued the following
order:
[T]he court retroactively grants nunc pro tunc relief, effective
February 14, 2024, with respect to [Appellant’s] post sentence
motion to withdraw guilty plea filed on November 14, 2023.
On November 14, 2023, [plea] counsel filed a post sentence
motion to withdraw guilty plea simultaneously with a petition to
withdraw as private counsel for [Appellant] after express direction
from the court’s chambers to preserve [Appellant’s] post sentence
and appellate rights. On February 1[5], 2024, upon consideration
of the post sentence motion and the Commonwealth’s response,
the court denied the post sentence motion on the merits, and
inadvertently omitted the sentence that the court expressly
granted nunc pro tunc relief. In the interest of judicial economy,
the court accepted and considered the post sentence
motion as timely to ensure [Appellant’s] post sentence
rights and appellate rights remain intact.
Order, 2/29/24 (emphasis added; footnote omitted).
Appellant filed a notice of appeal on the same date, which was docketed
at 803 EDA 2024. This Court dismissed the appeal as duplicative of the first
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appeal filed at 486 EDA 2024. Appellant and the trial court have complied
with Pa.R.A.P. 1925.4
Appellant now raises the following issue for review:
Did the lower court err in accepting [Appellant’s] guilty plea since
the plea was not knowing[ly] and voluntarily entered because
[Appellant’s] oral guilty plea colloquy failed to explain: (1) the
right to confront and cross-examine witnesses at trial, (2) the fact
that a jury’s verdict would need to be unanimous, and (3)
[Appellant] would have the right to participate in jury selection?
Appellant’s Brief at 3.
Appellant argues the guilty plea colloquy was defective, because the trial
court did not confirm Appellant’s understanding of certain rights. Id. at 9,
12-13. According to Appellant, the written guilty plea colloquy, which he
completed and signed, does not cure the defective oral colloquy. Id. at 14.
Appellant claims the oral colloquy did not address his right to confront and
cross-examine witnesses, his right to participate in jury selection, or the
requirement that a jury’s verdict be unanimous. Id.
“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.”
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4 On May 23, 2024, this Court issued a rule to show cause why the appeal
should not be quashed as untimely, as Appellant’s post-sentence motion was
untimely filed and therefore did not toll the appeal period. In response,
Appellant pointed to the trial court’s February 29, 2024, order indicating it had
intended to explicitly grant nunc pro tunc relief in its February 15, 2024, order.
This Court subsequently discharged the rule to the show cause and referred
the issue to the merits panel. Because the trial court expressly granted nunc
pro tunc relief and considered Appellant’s post-sentence motion as timely
filed, we decline to quash the appeal.
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Commonwealth v. Kehr, 180 A.3d 754, 757 (Pa. Super. 2018) (citation
omitted). Further, concerning post-sentence motions to withdraw pleas, we
have explained:
Post-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 the circumstances
surrounding the plea. A deficient plea does not per se establish
prejudice on the order of manifest injustice.
Id. at 756-67 (citation and brackets omitted).
“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.” Commonwealth v. Yeomans, 24 A.3d
1044, 1047 (Pa. Super. 2011) (citation omitted); see also id. at 1046 (“The
entry of a guilty plea is a protracted and comprehensive proceeding wherein
the court is obliged to make a specific determination after extensive colloquy
on the record that a plea is voluntarily and understandingly tendered.”
(citation omitted)). Moreover, “[a] defendant is bound by the statements
which he makes during his plea colloquy and cannot assert challenges to his
plea that contradict his statements when he entered the plea.”
Commonwealth v. Jamison, 284 A.3d 501, 506 (Pa. Super. 2022).
The comment to Pa.R.Crim.P. 590 directs the trial court to elicit, at a
minimum, the following information:
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(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 of 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, cmt.
“A written plea colloquy that is read, completed and signed by the
defendant and made part of the record may serve as the defendant’s plea
colloquy when supplemented by an oral, on-the-record examination.”
Commonwealth v. Reid, 117 A.3d 777, 783 (Pa. Super. 2015).5 As we have
explained,
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
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5 Appellant cites to Commonwealth v. Clyburn, 42 A.3d 296 (Pa. Super.
2012), arguing a written colloquy is insufficient to establish a defendant
knowingly, intelligently, and voluntarily waived a constitutional right.
Appellant’s argument is unavailing. At issue in Clyburn was the defendant’s
waiver of her right to counsel, which is governed by its own criminal procedural
rule, Pa.R.Crim.P. 121. See Clyburn, 42 A.3d at 298-99. Further, both the
written and oral colloquies in Clyburn were silent as to one of the areas of
inquiry required by Rule 121. See id. at 301-02.
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consequences of his plea and that he knowingly and voluntarily
decided to enter the plea.
Yeomans, 24 A.3d at 1047 (citation omitted).
Instantly, the trial court concluded Appellant had entered a knowing,
intelligent, and voluntary guilty plea. The court addressed Appellant’s claim
as follows:
Appellant understood that by entering a negotiated plea of guilty,
he was giving up the right to confront and cross-examine
witnesses at trial. Appellant completed an extensive written
colloquy in connection with his guilty plea, which the court
reviewed and admitted into evidence. (N.T. Guilty
Plea/Gagnon /Sentencing 10/27/23, at 7, 12, Exhibit D-1).
6
Appellant initialed each page and signed the last page of the
written colloquy. Appellant acknowledged in the written guilty
plea colloquy that he had sufficient time to talk with his attorney
and that his attorney told him what the words in the colloquy
mean. (Guilty Plea Colloquy, questions 33 and 34). Appellant
also participated in an extensive oral colloquy under oath.
Appellant affirmed that no one forced him or coerced him to
enter into th[e] plea, and that he was pleading guilty o[f] his own
free will. (Written Guilty Plea Colloquy, questions 28-31, 38, 39;
N.T. Guilty Plea/Gagnon/Sentencing 10/27/23, at 15). He stated
that if he were asked any questions contained in the written
colloquy under oath on the record[,] the answers would remain
the same and would be truthful. (N.T. Guilty
Plea/Gagnon/Sentencing 10/27/23 at 7).
Appellant understood that by pleading guilty he was giving
up his right to a jury trial, which includes the right to confront and
cross-examine witnesses at trial. (Written Guilty Plea Colloquy,
question 16 and 17). In the oral colloquy, [plea] counsel asked
Appellant the following questions:
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6 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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Q. And you understand that you don’t have to plead guilty.
And, in fact, your case was scheduled for a jury trial for next
week; is that right?
A. Yes.
Q. And you went over with [Attorney] Kenny,7 and you and
I also went over today, this morning, before court, what a
jury trial looks like; is that right?
A. Yes, sir.
Q. And you understand during a jury trial, the prosecutor or
District Attorney has the burden to prove you’re guilty
beyond a reasonable doubt?
A. Yes, sir.
Q. And you understand that you could testify in your own
defense and call witnesses in your own defense?
A. Yes, sir.
Q. And you understand if you were to elect to not testify,
the Judge would instruct the jury to not hold that against
you and infer guilt by silence; right?
A. Yes, sir.
Q. And you understand that by pleading guilty, you’re giving
up that right to a trial?
A. Yes, sir.
(N.T. Guilty Plea/Gagnon/Sentencing 10/27/23 at 8-9).
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7 Thomas Kenny, Esquire, represented Appellant during most of Appellant’s
criminal proceedings. Plea counsel also entered his appearance as counsel,
and stood in for Attorney Kenny during the plea hearing. See N.T., 10/27/23,
at 3. Appellant confirmed he was comfortable with plea counsel representing
him during the guilty plea hearing in place of Attorney Kenny. Id. at 15.
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The court conducted an oral colloquy of Appellant to confirm
that Appellant was not forced, pressured or coerced to enter a
plea of guilty. Id. at 15-16. The court reiterated to Appellant that
when he enters a plea of guilty[,] he gives up all of his rights
except four (4) appellate rights as detailed in the written guilty
plea colloquy. Appellant stated that he understood he was giving
up his rights, and he stated that he did. Id. at 19. The court
asked Appellant whether he was voluntarily giving up his rights
and entering a guilty plea, and he stated “yes.” Id.
Next, [the right to participate in jury selection was
adequately explained to Appellant, and] Appellant understood that
if he chose to proceed to trial, the jury’s verdict would need to be
unanimous. Question 17 in the written guilty plea colloquy asked,
“Do you understand that the right to a trial by jury means that
you can take part in the selection of the jury with your attorney;
that the jury is chosen from the voters registration list and
licensed drivers of Montgomery County, and that all 12 people on
your jury must agree on your guilt beyond a reasonable doubt,
before you can be convicted of the crime or crimes with which you
are charged?” Appellant marked “yes” to question 17. In
addition, Appellant confirmed during the oral colloquy that he
understood the trial rights he was giving up by entering a guilty
plea. Id. at 8.
….
In this case, both [plea] counsel and the [trial] court
conducted an oral colloquy of Appellant to establish that he
understood the trial rights he was relinquishing by entering a
negotiated plea of guilty. Appellant affirmed that he understood
the trial rights he was giving up. Id. at 8, 17, 19.
Based on the foregoing, the totality of the circumstances
indicate that Appellant had a full understanding of the nature and
consequences of his plea. Appellant understood he was pleading
guilty; he understood the nature of the charges to which he was
pleading guilty; he understood the maximum sentences he was
facing; he understood his trial rights and that he was relinquishing
those rights by pleading guilty; and[] he understood his post
sentence and appellate rights. The court conducted a separate
inquiry of Appellant in accordance with [Pa.R.Crim.P.] 590. The
court determined that Appellant understood the terms of the guilty
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plea and knowingly, intelligently and voluntarily entered a plea of
guilty in this case.
Trial Court Opinion, 4/18/24, at 10-13 (footnotes added).
Upon review, we agree with the trial court’s conclusion that, under the
totality of the circumstances, Appellant’s plea was knowingly, intelligently, and
voluntarily entered. Appellant agreed to the factual basis for his plea, as set
forth by the Commonwealth during the hearing. N.T., 10/27/23, at 13. The
record confirms Appellant completed a written guilty plea colloquy, which he
reviewed with plea counsel prior to the hearing. See Written Plea Colloquy,
10/27/23; see also N.T., 10/27/23, at 7 (wherein Appellant confirmed he
initialed each page of the written colloquy and signed the final page, and
indicated he would answer all questions contained in the written colloquy the
same way if he were asked in open court). Appellant also confirmed he had
reviewed his right to a jury trial, as well as “what a jury trial looks like,” with
both Attorney Kenny and plea counsel before proceeding with the guilty plea.
N.T., 10/27/23, at 8. The trial court supplemented the written guilty plea
colloquy with an on-the-record colloquy to confirm Appellant’s understanding
of the rights he would forego by pleading guilty. See id. at 14-20; see also
Reid, supra.Based on the foregoing, we discern no abuse of the trial court’s
discretion in accepting Appellant’s plea as knowingly, intelligently, and
voluntarily entered. Appellant is not entitled to relief.
Judgment of sentence affirmed.
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Date: 11/13/2024
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