Com. v. Godlewski, R.

J-S34032-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT PAUL GODLEWSKI :
:
Appellant : No. 1270 MDA 2020
Appeal from the Judgment of Sentence Entered August 28, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002556-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: JANUARY 28, 2022
Robert Paul Godlewski appeals from the judgment of sentence imposed
in the Luzerne County Court of Common Pleas following his guilty plea to one
count of criminal conspiracy to deliver controlled substances (fentanyl).1 He
contends the trial court erred by: (1) accepting his guilty plea as knowing and
voluntary when his plea colloquy was statutorily deficient; (2) denying his pre-
sentence motion to withdraw his guilty plea based upon his assertion of
innocence and misunderstanding that he was pleading guilty to a
misdemeanor; (3) denying his post-sentence motion to withdraw his plea
without first conducting a hearing or providing new counsel; and (4) accepting
his plea in light of his conflict of interest with plea counsel, which was not
rectified prior to sentencing. For the reasons below, we affirm.
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1 18 Pa.C.S. § 903; 35 P.S. § 780-113(a)(30).
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The relevant facts underlying Appellant’s plea are gleaned from the
affidavit of probable cause supporting the criminal complaint. See Affidavit
of Probable Cause, 4/30/19, at 1-2. On April 17 and 22, 2019, narcotics
agents with the Pennsylvania Office of Attorney General conducted two
controlled buys of heroin with a confidential informant (CI). Id. On both
occasions, the CI arranged with a person known as “Bill” to purchase the drugs
at a house located on Maxwell Street in Wilkes-Barre, Luzerne County. Id. at
1. Each time, the CI was provided with prerecorded funds, and driven to the
location by a narcotics agent. Id. During both transactions, “Bill,” later
identified as Appellant, left the house to pick up the drugs from a silver
Hyundai sedan parked nearby. Id. Appellant then returned to the house and
completed the transaction with the CI. Id. The agents arranged a third
controlled buy for April 30th. See id. at 2. As in the past, after the CI entered
the residence, Appellant exited the residence and entered the passenger side
of the Hyundai sedan, which began to drive away. Id. Agents stopped the
vehicle shortly thereafter, and both Appellant and the driver were arrested.
Id. Although Appellant denied any knowledge of drugs, the driver informed
the agents that he met with Appellant to sell him heroin. Id. Six hundred
dollars of prerecorded funds were recovered from the driver. Id.
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Appellant was originally charged with two counts of possession with
intent to deliver a controlled substance (PWID),2 and one count each of
criminal conspiracy and criminal use of a communication facility.3 The charge
of criminal use of a communication facility was withdrawn prior to the filing of
the criminal information.
On January 13, 2020, Appellant appeared for a guilty plea hearing,
represented by Brian Corcoran, Esquire. The Commonwealth informed the
trial court that Appellant agreed to plead guilty to one count of PWID (3.8
grams of fentanyl) — an “ungraded felony with a maximum time of 15 years”
— in exchange for which the Commonwealth would withdraw the remaining
charges. N.T., Guilty Plea H’rg, at 2. After a few preliminary questions —
including whether Appellant had reviewed the plea with his attorney and
signed the written plea agreement — the trial court asked Appellant if he
understood the elements of the offense. Id. at 3-4. Appellant responded, “I
thought it was conspiracy . . . I wanted to plead guilty to the conspiracy
count.” Id. at 4. The Commonwealth indicated that “could be a potential
plea” and requested a moment to review the case. Id.
After a brief recess, the Commonwealth announced, “[T]his is a
negotiated plea to Count 3, criminal conspiracy to PWID, fentanyl, 3.8
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2 Although no drug analysis report is included in the certified record, the
Commonwealth stated at the guilty plea hearing that Appellant delivered 3.8
grams of fentanyl. See N.T. Guilty Plea H’rg, 1/13/20, at 2 (unpaginated).
3 See 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 7512(a).
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grams, an ungraded felony with a maximum time of 15 years[.]” N.T.,
Guilty Plea H’rg, at 5 (emphasis added). The following exchange took place:
THE COURT: . . . I know you were going over this earlier. It’s
basically the same thing only the plea is to Count 3, conspiracy,
rather than Count 1. That’s what you wish to do?
[Appellant]: Okay. Yes.
THE COURT: Okay. You’ve reviewed all of this with your attorney,
and you wish to plead guilty to that charge?
[Appellant]: Yes.
Id. Thereafter, the Commonwealth provided a summary of the facts
underlying the charge, and the court further colloquied Appellant before
accepting the guilty plea. See id. at 6-7. At the conclusion of the hearing,
the trial court ordered a presentence investigation report and scheduled a
sentencing hearing for March 24, 2020. Id. at 7-8.
Due to the COVID-19 pandemic judicial emergency, Appellant’s
sentencing hearing was postponed until June 26, 2020. At that time, Attorney
Corcoran informed the trial court that Appellant wanted to withdraw his guilty
plea, and did not want Attorney Corcoran “as his attorney anymore.” N.T.,
6/26/20, at 2. When the court inquired why he wanted to withdraw his plea,
Appellant responded:
I didn’t intend to plead guilty to a felony. This incident was – I
got caught up in. I had no criminal intent there at all. I would
either want to plead not guilty or to a lesser charge. I didn’t
realize I was pleading to a felony like that. I had no intent or no
gain . . .
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Id. The trial court provided Appellant with two weeks to file a written motion
to withdraw his plea and scheduled a hearing for July 28th. Id. at 3.
Attorney Corcoran did not file a written motion, and there was no
hearing conducted on July 28th. On August 25, 2020, Appellant appeared
before the trial court. At that time, Attorney Corcoran informed that trial court
that Appellant “raised some issues . . . with me as his counsel[,]” specifically
that Attorney Corcoran “didn’t explain to him the nature of the charges and
that they were a felony. [Appellant] claims he thought he was pleading to a
misdemeanor.” N.T. Sentencing H’rg, 8/25/20, at 2. Appellant confirmed
this, stating:
. . . I thought I was pleading to a conspiracy charge,
misdemeanor; but then when they were explaining it to you, they
didn’t say conspiracy. Then we sent it back. Then when I signed
it the second time, I pointed out here it says conspiracy, so I
signed it, but I didn’t realize it was a felony.
Also, my co-defendant . . . was the actual . . . dealer in this
case. [H]e didn’t get a felony for this. All they did was use my
telephone. That’s definitely not what I wanted to plead to.
Id. at 2-3.
The Commonwealth objected because Appellant never filed a written
motion to withdraw his plea when the court gave him the opportunity to do
so. See N.T., Sentencing H’rg, at 3. Attorney Corcoran responded that he
did not file a written motion because he would have had to “argue against
[his] own client based upon [his] file notes.” Id. at 4. Nevertheless, he
asserted to the court that Appellant told him “he understood he was pleading
to a misdemeanor [and t]hat was the basis for withdrawing the plea.” Id. at
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7. However, Attorney Corcoran also stated his “notes reflect that [he]
explained the sentencing scheme to [Appellant] extensively, . . . and that [it]
would be a State sentence[.]” Id. The trial court denied Appellant’s request
to withdraw his plea, concluding “there was a knowing, voluntary, and
intelligent guilty plea entered [and that i]t just seems like now [Appellant]
doesn’t want to sort of face his sentencing.” Id. at 8. The court proceeded
to sentence Appellant to a term of 30 to 60 months’ incarceration.
On September 3, 2020, Attorney Corcoran filed a timely post-sentence
motion, requesting Appellant be permitted to withdraw his guilty plea based
upon his misunderstanding that he was pleading to a felony rather than a
misdemeanor. See Appellant’s Post Sentence Motion, 9/3/20, at 1-2
(unpaginated). That same day, Attorney Corcoran also filed a motion for the
appointment of conflict counsel, asserting Appellant “implicitly, if not
explicitly, accused counsel of being ineffective” and there was an “irretrievable
breakdown of the attorney-client relationship[.]” Appellant’s Motion for
Appointment of Conflict Counsel, 9/3/20, at 1-2 (unpaginated). On
September 9th, the trial court granted the motion for appointment of conflict
counsel, and present counsel — Mark Hinrichs, Esquire — entered his
appearance on September 11th. That same day, the trial court entered an
order denying Appellant’s post-sentence motion.
On September 15, 2020, Attorney Hinrichs filed a post-sentence motion,
in which he requested permission to supplement the previously-filed motion.
See Appellant’s Supplemental Post-Sentence Motion, 9/15/20, at 2
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(unpaginated). Attorney Hinrichs argued: (1) Appellant should be permitted
to withdraw his plea pre-sentence because he “makes an assertion of
innocence[,]” and “lacked a fundamental understanding of the circumstances
of the plea, including the correct charge he was admitting to[;]” (2) Appellant
should be permitted to withdraw his plea post sentence because “he did not
enter the guilty plea knowingly, intelligently, or voluntarily based on his lack
of understanding[;]” and (3) the sentence imposed was “unduly harsh and
excessive.” Id. at 4, 6-8. On September 18th, the trial court entered an
order denying the supplemental post-sentence motion as untimely. This
timely appeal follows.4
Appellant raises the following four issues for our review:
1. Did the trial court err by accepting [Appellant’s] guilty plea that
had not been made knowingly, intelligently, and voluntarily as
a result of a statutorily deficient guilty plea colloquy rendering
the plea invalid?
2. Did the trial court err by denying [Appellant’s oral] motion to
withdraw his plea based upon assertions of innocence and a
complete lack of understanding about the substance of the
criminal conduct and offense at the time the plea was accepted
by the court?
3. Did the trial court err by denying [Appellant’s] post-sentence
motion to withdraw the guilty plea by failing to conduct an on
the record hearing to determine that the defective colloquy
failed to identify that [Appellant] pleaded guilty in an
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4Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)
concise statement of matters complained of on appeal. The Commonwealth
has not filed a responsive brief in this matter.
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unknowing and involuntary manner resulting in a manifest
injustice?
4. Did the trial court err by accepting [Appellant’s] guilty plea
when over the course of the plea and sentencing hearings,
counsel for [Appellant] indicated that one or more issues
existed with [Appellant] creating a conflict of interest that
would require an admission of ineffective assistance of counsel
in order to continue to represent [Appellant], which in effect
left [Appellant] unrepresented?
Appellant’s Brief at 4.
While Appellant sets forth four distinct claims in his brief, they all center
on the trial court’s refusal to permit him to withdraw his guilty plea. Generally,
“upon entry of a guilty plea, a defendant waives all claims and defenses other
than those sounding in the jurisdiction of the court, the validity of the plea,
and what has been termed the ‘legality’ of the sentence imposed[.]”
Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014) (citation
omitted). “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.”
Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017). In either
case, the decision whether to permit a defendant to withdraw a plea rests
within the trial court’s discretion. Commonwealth v. Culsoir, 209 A.3d 433,
437 (Pa. Super. 2019).
A motion to withdraw a plea made before sentencing should be liberally
granted. See Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973).
Nevertheless, our Supreme Court has concluded that “a bare assertion of
innocence is not, in and of itself, a sufficient reason to require a court to grant
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such a request.” Commonwealth v. Carrasquillo, 115 A.3d 1284, 1285
(Pa. 2015). Rather:
[T]he proper inquiry . . . is whether the accused has made some
colorable demonstration, under the circumstances, such that
permitting withdrawal of the plea would promote fairness and
justice. The policy of liberality remains extant but has its limits,
consistent with the affordance of a degree of discretion to the
common pleas courts.
Id. at 1292. In Commonwealth v. Norton, 201 A.3d 112 (Pa. 2019), the
Court further explained that pursuant to its decision in Carrasquillo,
trial courts have the discretion to assess the plausibility of claims
of innocence. Consistent with the well-established standards
governing trial court discretion, it is important that appellate
courts honor trial courts’ discretion in these matters, as trial courts
are in the unique position to assess the credibility of claims of
innocence and measure, under the circumstances, whether
defendants have made sincere and colorable claims that
permitting withdrawal of their pleas would promote fairness and
justice.
Id. at 121.
A trial court’s review of a post-sentence request to withdraw a guilty
plea, is guided by the following:
[As noted above], the decision to allow a defendant to withdraw a
plea post-sentence is a matter that rests within the sound
discretion of the trial court. Moreover, a request to withdraw a
guilty plea after sentencing is subject to higher scrutiny “since
courts strive to discourage [the] entry of guilty pleas as sentence-
testing devices.” Therefore, in order to withdraw a guilty plea
after the imposition of sentence, a defendant must make a
showing of prejudice which resulted in a “manifest injustice.” A
defendant meets this burden only if he can demonstrate that his
guilty plea was entered involuntarily, unknowingly, or
unintelligently.
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Once a defendant enters a guilty plea, it is presumed that
he was aware of what he was doing. Consequently, defendants
are bound by statements they make during their guilty plea
colloquies and may not successfully assert any claims that
contradict those statements.
Culsoir, 209 A.3d at 437 (citations omitted). With these standards in mind,
we consider Appellant’s arguments on appeal.
First, Appellant contends the trial court erred when it accepted his guilty
plea after conducting an insufficient colloquy. Appellant’s Brief at 13.
Specifically, he maintains the court did not insure there was a sufficient factual
basis for the plea or that Appellant understood the nature of the crime to
which he pled guilty — criminal conspiracy to deliver fentanyl. See id. at 15,
19-20, 22-23. Moreover, Appellant insists the trial court did not discuss the
potential range of sentences he faced nor inform him about the jury process,
including the requirement that a jury verdict be unanimous. See id. at 24-
28. Thus, Appellant argues his plea was “not the product of a knowing and
voluntary decision[.]” Id. at 13.
We note that “[i]t is for the court which accepted the plea to consider
and correct, in the first instance, any error which may have been committed.”
Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 469 (Pa. Super.
2017). Accordingly:
A defendant wishing to 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.
Failure to employ either measure results in waiver.
Commonwealth v. Lincoln, 72 A.3d 606, 609–10 (Pa. Super. 2013)
(citations omitted).
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Upon our review, we conclude Appellant’s challenge to the sufficiency of
his plea colloquy is waived because he did not raise this claim before the trial
court in either his oral pre-sentence motion or his written post-sentence
motion to withdraw his plea. See Pa.R.A.P. 302(a) (“Issues not raised in the
trial court are waived and cannot be raised for the first time on appeal.”).
Prior to sentencing, Appellant requested to withdraw his plea because he
“didn’t intend to plead guilty to a felony.” N.T., 6/26/20, at 2. See N.T.,
Sentencing H’rg, at 7 (Attorney Corcoran stating Appellant claimed he
“understood he was pleading to a misdemeanor”). That was also the only
claim presented in his timely-filed post-sentence motion. See Appellant’s Post
Sentence Motion at 1-2. Accordingly, Appellant’s first claim is waived for our
review.5
Next, Appellant asserts the trial court erred when it denied his pre-
sentence motion to withdraw the plea. See Appellant’s Brief at 28. He insists
he “clearly assert[ed his] innocence” at the June 26, 2020, hearing when he
stated he “had no criminal intent” and had nothing to gain from the events
leading to his arrest. Id. at 30. He “also indicated he was not pleading to a
____________________________________________
5 We note that Attorney Hinrichs attempted to file a supplemental post-
sentence motion, but the trial court denied him permission to do so. See
Order, 9/18/20; Pa.R.Crim.P. 720(B)(1)(b) (permitting filing of supplemental
post-sentence motion only upon leave of court). Nevertheless, our review
of the supplemental motion reveals no specific challenge to the colloquy, but
rather only a vague claim that Appellant “did not enter the guilty plea
knowingly, intelligently, or voluntarily based on his lack of understanding and
the resulting inability to make decisions accurately in his case.” Appellant’s
Supplemental Post-Sentence Motion at 7.
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felony.” Id. Appellant further emphasizes that Attorney Corcoran was
operating under a “conflict of interest” to such extent that he was unable to
file a written motion on Appellant’s behalf. Id. at 31. Lastly, Appellant faults
the trial court for failing to “hold a formal hearing” on his motion to withdraw
the plea. See id. at 30-31.
As noted above, Appellant presented an oral motion to withdraw his
guilty plea to the trial court, first, on June 26, 2020, and again on August 25,
2020. On both occasions, Appellant stated that he misunderstood he was
pleading guilty to a felony charge, and instead, believed he was entering a
plea to a misdemeanor. See N.T., 6/26/20, at 2; N.T., Sentencing H’rg, at 2-
3, 7-8. The trial court addressed this claim in its opinion as follows:
Here, we initially note that a review of the record confirms
that [Appellant] did not assert his innocence at any point during
the January 13, 2020 guilty plea hearing, the June 26, 2020
aborted sentencing hearing, the August 25, 2020 pre-sentence
motion to withdraw/sentencing hearing, or in his timely filed post-
sentence motion to withdraw his plea. Indeed, it is readily
apparent from the record that [Appellant’s] pre-sentence and
post-sentence requests to withdraw his guilty plea were not based
on an assertion of innocence but were instead based on
[Appellant’s] assertion that he was not aware that the conspiracy
charge to which he was pleading was graded as a felony.
Further, [Appellant’s] claimed lack of knowledge was belied
by the record, which shows that [Appellant] was well aware that
the conspiracy charge to which he was pleading was graded as a
felony. Thus [Appellant’s] pre-sentence request to withdraw his
plea was not accompanied by a demonstration of a fair-and-just
reason, and [Appellant] did not, and could not, show that
permitting withdrawal of his plea would promote fairness and
justice. As such, this Court appropriately denied his pre-sentence
request to withdraw the plea.
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Trial Ct. Op. at 11-12 (citations omitted).
We detect no abuse of discretion on the part of the trial court. Contrary
to his claim on appeal, Appellant did not “clearly assert[ his] innocence” during
the June 26th hearing. Rather, he stated: (1) he did not intend to plead
guilty to a felony; (2) he “got caught up in” the incident; (3) he had “no
criminal intent[;]” and (4) he “would either want to plead not guilty or to a
lesser charge.” N.T., 6/26/20, at 2. Appellant’s comments at both the June
26th and August 25th hearings indicate that he wanted to withdraw his plea
because he desired to plead to a misdemeanor, not because he was innocent
of the crime.
Furthermore, Appellant cites no authority requiring the trial court to
conduct a “formal hearing” on his motion prior to sentencing. See Appellant’s
Brief at 30-31. Although Attorney Corcoran neglected to file a written motion
to withdraw the plea, the trial court permitted counsel to argue Appellant’s
position before denying the motion. See N.T., Sentencing H’rg, at 1-8.
Moreover, as the trial court points out in its opinion, the record belies
Appellant’s claim that he believed he was pleading guilty to a misdemeanor.
Indeed, after a brief recess during the plea hearing, the Commonwealth stated
that the parties reached a “negotiated plea to Count 3, criminal conspiracy to
PWID, fentanyl, 3.8 grams, an ungraded felony with a maximum time of 15
years[.]” N.T., Guilty Plea H’rg, at 5 (emphasis added). Similarly, the written
plea agreement, which is included in the certified record and signed by
Appellant, indicates the plea was for an ungraded felony. See Appellant’s Plea
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Agreement, 1/13/20 (listing grading of the crime as “F” for felony).
Accordingly, Appellant’s claim that he believed he was pleading to a
misdemeanor charge is belied by the record.
Next, Appellant contends the trial court erred when it denied his post-
sentence motion to withdraw his plea. See Appellant’s Brief at 31-32. Again,
he complains that the trial court failed to conduct a hearing on his motion,
and asserts the court should have appointed a new attorney before addressing
the motion. Id. at 32-33.
With regard to Appellant’s post-sentence request to withdraw the plea,
the trial court found that Appellant “entered into the plea agreement
knowingly, intelligently and voluntarily, and . . . did not demonstrate that
manifest injustice would result from the denial of his post-sentence motion to
withdraw[.]” Trial Ct. Op. at 12. We agree. Again, Appellant fails to cite any
authority mandating the trial court conduct a hearing on a post-sentence
motion. In fact, Pennsylvania Rule of Criminal Procedure 720 provides that
the trial court shall “determine whether a hearing or argument on the motion
is required[.]” Pa.R.Crim.P. 720(B)(2)(b). Here, the timely-filed motion
presented the same claim that was argued prior to sentencing — that is,
Appellant misunderstood he was pleading to a felony. Thus, the court did not
err in failing to conduct a hearing before denying relief.
Moreover, while Attorney Corcoran told the trial court at the June 26th
listing that Appellant indicated he did not “want [Attorney Corcoran] as his
attorney anymore[,]” he did not file a motion to withdraw as counsel, or argue
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to the court at that time that there was an irreconcilable conflict of interest.
N.T., 6/26/20, at 1-2. Indeed, the trial court stated: “I’m not sure what your
issue is with your attorney, but he’s your court-appointed attorney[, and] I
don’t pick and choose who your public defender is.” Id. at 3. Because neither
Appellant nor Attorney Corcoran provided the court with any reason to permit
counsel to withdraw, the court was under no obligation to appoint conflict
counsel. Thus, Appellant’s third issue fails.
In his final claim, Appellant similarly asserts the trial court erred when
it failed to rectify the “significant conflict” between Appellant and counsel prior
to sentencing. Appellant’s Brief at 34. Appellant’s sole argument on this claim
consists of the following sentence: “Appellant wants [the Superior] Court to
consider the possibility that he hadn’t received motivated counsel, especially
with regard to Appellant[’]s desire to withdraw his plea.” Id. at 35.
We emphasize again that Attorney Corcoran did not file a formal motion
to withdraw as counsel before Appellant’s sentencing hearing. While there
was some discussion at the June 26th hearing that Appellant wanted new
counsel, it was insufficient to obligate the trial court to inquire further.
Moreover, although Attorney Corcoran indicated at the August 25th hearing
that he could not “ethically” file a written motion to withdraw Appellant’s plea
because he would have to “argue against [his] own client based upon [his] file
notes,” he did orally argue Appellant’s position before the trial court. See
N.T., Sentencing H’rg, at 4-8. Indeed the trial court opined that Attorney
Corcoran “properly represented” Appellant by: “(1) negotiating a plea
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agreement . . . whereby two of the three original charges were dropped; (2)
arguing on [Appellant’s] behalf to withdraw the plea prior to sentencing; and
(3) filing a timely post-sentence motion to withdraw the guilty plea.” Trial Ct.
Op. at 14. Thus, as the court concludes: “If [Appellant] nevertheless choses
to raise an allegation that counsel was ineffective, he may [do so] through the
Post Conviction Relief Act.” Id. We agree.
Because we conclude Appellant has failed to demonstrate the trial court
abused its discretion in denying his pre- and post-sentence motions to
withdraw his guilty plea, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2022
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