Com. v. Weir, D.

J-S48011-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee, :
:
v. :
:
DWAYNE ARMAND WEIR, :
:
Appellant : No. 417 MDA 2014
Appeal from the Judgment of Sentence December 20, 2013,
Court of Common Pleas, Lancaster County,
Criminal Division at No(s): CP-36-CR-0003244-2012,
CP-36-CR-0003251-2012, CP-36-CR-0003253-2012
CP-36-CR-0003327-2012, CP-36-CR-0004003-2013
CP-36-CR-0004868-2011 and CP-36-CR-0004872-2011
BEFORE: DONOHUE, JENKINS and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 01, 2014
judgment of sentence entered by the Lancaster County Court of Common
Pleas. We affirm.
On July 11, 2013, a jury found Weir guilty of burglary, criminal
mischief, and theft by unlawful taking for a home invasion that occurred in
July of 2010.1 On August 28, 2013, Weir pled nolo contendre to nine counts
of burglary; one count of flight to avoid apprehension; eleven counts of theft
by unlawful taking; three counts of receiving stolen property; one count of
1
18 Pa.C.S.A. §§ 3502(a), 3304(a)(5), 3921(a). A full recitation of the
facts underlying all of the charges levied against Weir is contained in the trial
pinion. Based upon the issues raised on appeal, we find it
unnecessary to reproduce them in their entirety herein.
*Retired Senior Judge assigned to the Superior Court.
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fleeing and eluding; one count of agricultural vandalism; four counts of
criminal conspiracy; two counts of criminal mischief; two violations of the
Uniform Firearms Act; one count of trespass by motor vehicle; one count of
driving while operating privileges are suspended or revoked; and one count
of reckless driving.2 The charges stemmed from his role in seven home
invasions that occurred between April and August of 2011, and his
subsequent attempt to avoid apprehension by the police. At the sentencing
hearing on December 20, 2013, Weir also pled guilty to attempted escape
and possession of implements of escape based on his possession of a 17-
foot ladder on his person and a 36-foot rope in his jail cell, both made of bed
sheets, while incarcerated and awaiting sentencing on the other charges.3
The trial court sentenced Weir to an aggregate term of 20 to 54 years
of incarceration. Weir filed a timely post-sentence motion seeking
modification of his sentence and to withdraw his plea. The trial court denied
the motion on February 18, 2014.
Weir filed a timely notice of appeal and a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). He raises two
issues for our review:
2
18 Pa.C.S.A. §§ 3502(a), 5126(a), 3304(a)(1), 3921(a), 903(a)(1),
3925(a), 5121(a), 6105(a)(1); 75 Pa.C.S.A. § 3717(a), 1543(a), 3736(a).
3
18 Pa.C.S.A. §§ 901(a), 5122(a)(2).
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A. Whether the trial court participated in the plea-
bargaining process such as to render involuntary the
resulting nolo contendere plea?
B. Whether the trial court promised leniency to [Weir]
in consideration of his nolo contendere plea, which
promise was violated by imposition of an extremely
harsh prison sentence of 20-54 years?
As his first issue on appeal, Weir challenges the validity of his plea
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and then failed to follow through on its promise. Id. at 9. The trial court
denies that there is any basis by which to permit Weir to withdraw his plea.
Trial Court Opinion, 3/28/14, at 22.
For a plea to be considered valid, it must be entered knowingly,
voluntarily and intelligently. Commonwealth v. Pollard, 832 A.2d 517,
522
and the decision as to whether to allow a defendant to do so is a matter
Id. (citation omitted). To be
demonstrate prejudice on the order of manifest injustice before withdrawal
Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa.
Super. 2011) (citation omitted).
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injustice when it was entered into involuntarily, unknowingly, or
Pollard, 832 A.2d at 522.
The law forbids judges from participating in the plea bargaining
process. Commonwealth v. Evans
judge who makes a promise as to what his judgment will be in advance of
hearing a case is guilty of judicial misconduct, and allegations of such
misconduct should be clearly proved to warrant the fastening of discredit
Commonwealth v. Lynch, 231 A.2d 880, 882
(Pa. Super. 1967).
The record reflects that on August 28, 2013, the proceeding began
the seven home invasions. N.T., 8/28/13, at 5. Prior to beginning jury
selection, the trial court inquired about the status of any plea discussions,
and the Commonwealth indicated that it agreed to withdraw 12 violations of
the Uniform Firearms Act person not to possess firearms if Weir pled
guilty. Id. at 5-6. The trial court then informed Weir of the options he had
before him: a jury trial, a bench trial, a negotiated guilty plea or plea of
nolo contendere (if the Commonwealth would agree to a sentence), or an
open guilty plea or plea of nolo contendere. Id. at 8-12. The court
explained that unless he had a negotiated guilty plea, it was within its
Id. at 9-11. The trial court
informed Weir that if he entered a plea of guilty or nolo contendere, the
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Id. at 11. Weir then accepted the
with his attorney. Id.
at 12-13.
After consulting with counsel, Weir stated his intention to enter a plea
of nolo contendere to the charges before the court. Id. at 14. The court
commended him for taking responsibility. Id. at 15. As there was a pool of
jurors present for selection, it also warned Weir against using his plea to
delay matters. The court stated that if Weir sought to withdraw his plea
uld take that into consideration when sentencing
him. Id. at 15. The court further stated that Weir might not be able to
withdraw his plea if the Commonwealth could prove that it would be
prejudiced, as some of their witnesses did not live locally. Id. at 15-16.
The trial court gave the Commonwealth time to prepare the paperwork
nolo contendere plea. Id. at 17. When the
proceeding reconvened, the court engaged in a lengthy colloquy, covering all
required areas,4 to ensur
4
Pennsylvania Rule of Criminal Procedure 590 requires that a plea be given
on the record in open court for the court to determine whether it is
knowingly, voluntarily and intelligently entered. Pa.R.Crim.P. 590(a). The
comment to Rule 590 indicates that the court must at least make the
following inquiries:
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intelligent. Id. at 25-71. In the midst of the colloquy, the trial court
understand that if you do do that, you will not be prejudiced. In other
words, it will not be held against you that we have gotten this far into the
guilty [sic Id. at 47. At the conclusion of the colloquy, counsel for
Weir made the following statement on his behalf:
I believe that my client is making a knowing,
intelligent, and voluntary decision to plead no
contest to these charges because, given the totality
(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.
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of the evidence, as well as the fact that I believe the
Commonwealth would be able to show that my client
told the co-defendants that he would take
responsibility for the things and to testify against
him or to put it on him, and also that he then, when
he met with the police, attempted to take the
responsibility onto himself, all of which led to a very
complicated bit of evidence and admissions to the
police.
So that with what we have reviewed and believe
they could prove, as well as what the jury would
simply take away from that, as well as the fact that
if my client testified he would be impeached with
decision to plead nolo to these Informations.
Id. at 72-73.
Based
that the trial court participated in the plea bargaining process or that it made
would take into account his acceptance of responsibility at sentencing does
not amount to a promise that he would receive a lighter sentence. Rather, a
trial courts routinely takes into account when sentencing a defendant who
pled guilty or nolo contendere. See, e.g., Commonwealth v. Bowen, 55
A.3d 1254, 1264-65 (Pa. Super. 2012) (trial court considered mitigating
circumstances when sentencing the defendant including, inter alia, the
nsibility), appeal denied, 64 A.3d 630 (Pa.
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2013); Commonwealth v. Curran, 932 A.2d 103, 105, 107 (Pa. Super.
2007) (sentence outside of the guidelines was appropriate despite the fact
acknowledged her involvement in the offense, [and] accepted responsibility
for cf. Commonwealth v. Miller, 965 A.2d 276,
accept responsibility for his actions when sentencing the defendant).
Indeed, in Commonwealth v. Burton, 251 A.2d 731 (Pa. Super. 1969) (en
banc) (per curiam), this Court upheld a guilty plea where the trial court told
the defendant that he would receive a lighter sentence if he pled guilty. Id.
at 731-32.
es not
withdraw his plea. Pollard, 832 A.2d at 522. There is nothing in the record
unintelligently. We therefore conclude that the trial court did not abuse its
nolo contendere.
As his second issue on appeal, Weir asserts that the trial court failed to
at 11-12. As we have found that the trial court made no such promise, this
issue is likewise without merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2014
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