Com. v. Wheeler, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SAMUEL LOUIS WHEELER
Appellant No. 1831 WDA 2015
Appeal from the Judgment of Sentence October 22, 2015
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0000564-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 07, 2016
Samuel Louis Wheeler appeals from the judgment of sentence entered
in the Court of Common Pleas of Butler County. On appeal, Wheeler
challenges the voluntariness of his negotiated guilty plea. After our review,
we affirm.
Wheeler was charged with eight counts of aggravated assault,1 five
counts of criminal attempt (homicide),2 three counts of assault of law
enforcement officer,3 one count of former convict not to own a firearm,4 two
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1
18 Pa.C.S. § 2702(a)(1), (a)(2), (a)(6).
2
18 Pa.C.S. § 901(a), 2501(a)(1).
3
18 Pa.C.S. § 2702.1(a).
4
18 Pa.C.S. § 6105(a)(1).
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counts of criminal attempt (burglary),5 five counts of terroristic threats,6
ten counts of recklessly endangering another person (REAP), 7 and five
counts of simple assault.8
On August 25, 2015, Wheeler entered a guilty plea before the
Honorable William Shaffer. On September 22, 2015, Wheeler filed a motion
to withdraw his guilty plea, but subsequently withdrew that motion on
October 7, 2015. On October 22, 2015, the court sentenced Wheeler to an
aggregate sentence of 13-30 years’ imprisonment.
On October 30, 2015, Wheeler filed a post-sentence motion to
withdraw his guilty plea, which the trial court denied. This appeal followed.
Wheeler raises two issues for our review:
1. Whether the Trial Court Erred in Failing to Grant Post-
Sentence Motion to Withdraw Wheeler’s Guilty Plea Based
on the Involuntary Nature Due to Wheeler’s Mental State?
2. Whether the Trial Court Erred in Denying the Post-
Sentence Motion to Withdraw Wheeler’s Guilty Plea Based
on Involuntary Nature Due to Coercion to Enter the Plea?
Appellant’s Brief, at 7.
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5
18 Pa.C.S. § 901(a)(3); 3502(a)(1).
6
18 Pa.C.S. § 2706(a)(1).
7
18 Pa.C.S. § 2705.
8
18 Pa.C.S. § 2701(a)(3).
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There is no absolute right to withdraw a guilty plea. Commonwealth
v. Flick, 802 A.2d 620, 623 (Pa. Super. 2002), citing Commonwealth v.
Forbes, 299 A.2d 268, 271 (Pa. 1973). Nevertheless, “prior to the
imposition of sentence, a defendant should be permitted to withdraw his
plea for ‘any fair and just reason,’” provided there is no substantial prejudice
to the Commonwealth. Commonwealth v. Kirsch, 930 A.2d 1282, 1284–
85 (Pa. Super. 2007), quoting Forbes, 299 A.2d at 271 (Pa. 1973).
However, a post-sentence motion to withdraw a guilty plea is “subject to
higher scrutiny since courts strive to discourage entry of guilty pleas as
sentence-testing devices.” Flick, 802 A.2d at 623. If a court denies a post-
sentence motion to withdraw, a defendant must demonstrate “manifest
injustice.” Id., citing Commonwealth v. Gunter, 771 A.2d 767 (Pa.
2001); Kirsch, 930 A.2d at 1284.
“Manifest injustice may be established if the plea was not
tendered knowingly, intelligently, and voluntarily.”
Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa. Super.
2002), citing Commonwealth v. Persinger, 532 Pa. 317, 615
A.2d 1305 (1992). In determining whether a plea is valid, the
court must examine the totality of circumstances surrounding
the plea. Commonwealth v. Flanagan, 578 Pa. 587, 854 A.2d
489, 500 (2004). A deficient plea does not per se establish
prejudice on the order of manifest injustice. Commonwealth v.
Carter, 540 Pa. 135, 656 A.2d 463 (1995); Commonwealth v.
Yager, 454 Pa. Super. 428, 685 A.2d 1000 (1996), appeal
denied, 549 Pa. 716, 701 A.2d 577 (1997).
Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009).
Wheeler argues that his mental condition precluded him from entering
a voluntary and intelligent plea. He also claims that there were no questions
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with respect to his mental condition at the oral guilty plea colloquy or in the
written colloquy. Wheeler further contends his reluctance to enter the plea
was evident from his prior pre-sentence filing of a motion to withdraw, which
he later withdrew.
The comment to Pennsylvania Rule of Criminal Procedure 590 states,
in its comment:
At a minimum the judge 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 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?
(7) Does the defendant understand that the
Commonwealth has a right to have a jury
decide the degree of guilt if the defendant
pleads guilty to murder generally?
Pa.R.Crim.P. 590 - Comment. See also Commonwealth v. Willis, 369
A.2d 1189 (Pa. 1977); Commonwealth v. Ingram, 316 A.2d 77 (Pa.
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1974); Commonwealth v. Martin, 282 A.2d 241, 244-45 (Pa. 1971). A
reviewing court evaluates the adequacy of the guilty plea colloquy and the
voluntariness of the resulting plea by examining “the totality of the
circumstances surrounding the entry of that plea.” Commonwealth v.
Prendes, 97 A.3d 337, 352 (Pa. Super. 2014). “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. (emphasis
added) (citations omitted).
At the guilty plea colloquy, Wheeler was asked each of the above
questions. Additionally, Wheeler was questioned as to whether he was
under the influence of any drugs or alcohol that would impair his ability to
make a decision or testify, to which he replied, “No.” See Guilty Plea
Proceeding, 10/7/15, at 4. He was also asked whether he was “knowingly
and voluntarily entering this plea agreement of [his] own free will,” to which
he replied, “Yes.” Id. at 10. Wheeler testified that no one had coerced him
or threatened him. Id. The court reiterated this question later in the
colloquy. Id. at 13. Further, Wheeler’s counsel acknowledged that a mental
health report had been prepared.9 Id. at 11. At the conclusion of the
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9
Although both parties allude to a mental health evaluation dated June 15,
2015, which is included in the reproduced record, that report has not been
included in the certified record on appeal. “[A]any document which is not
part of the officially certified record is deemed non-existent—a deficiency
which cannot be remedied merely by including copies of the missing
(Footnote Continued Next Page)
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colloquy, the court reviewed Wheeler’s written guilty plea colloquy with him.
Wheeler acknowledged that his counsel reviewed each page with him, that
he initialed each page, and that he signed the colloquy form of his “own free
will[.]” Id. at 11. As the Commonwealth points out, the trial court had full
opportunity to observe Wheeler’s demeanor. Wheeler did not exhibit
confusion or misunderstanding, he answered each question clearly and
appropriately, and he displayed no hesitation in his responses. Other than
his bald claim of mental incapacity, Wheeler has failed to establish that he
was unaware of what he was doing or incapable of voluntarily entering a
plea.
After our review of the record and the circumstances here, we
conclude that Wheeler’s plea was voluntary and knowing and that Wheeler
has therefore failed to meet his burden of establishing manifest injustice.
_______________________
(Footnote Continued)
documents in a brief or in the reproduced record. Commonwealth v.
Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005).
[U]nless the trial court certifies a document as part of the official
record, the appellate judiciary has no way of knowing whether
that piece of evidence was duly presented to the trial court or
whether it was produced for the first time on appeal and
improperly inserted into the reproduced record. Simply put, if a
document is not in the certified record, the Superior Court may
not consider it.
Commonwealth v. Preston, 907 A.2d 1, 7 (Pa. Super. 2006), citing
Commonwealth v. Walker, 878 A.2d 887, 888 (Pa. Super. 2005).
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Broadan, supra. We affirm the order denying his post-sentence motion to
withdraw his guilty plea.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2016
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