Com. v. Smith, D.

J-S24012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAESEAN BERNARD SMITH
Appellant No. 2318 EDA 2014
Appeal from the Judgment of Sentence April 21, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0004021-2013
BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 08, 2015
Appellant, Daesean Bernard Smith, appeals from the judgment of
sentence entered in the Bucks County Court of Common Pleas, following his
open guilty plea to burglary, conspiracy to commit burglary, two counts of
robbery, two counts of conspiracy to commit robbery, four counts of
kidnapping for ransom, four counts of conspiracy to commit kidnapping for
ransom, four counts of kidnapping to facilitate a felony, four counts of
conspiracy to commit kidnapping to facilitate a felony, criminal attempt
(theft), conspiracy to commit theft, criminal attempt (theft by extortion),
conspiracy to commit theft by extortion, four counts of false imprisonment,
four counts of conspiracy to commit false imprisonment, persons not to
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possess firearms, and possessing instruments of crime.1 We affirm
Appellant’s convictions but vacate and remand for resentencing.
In its opinion, the trial court set forth the relevant facts and procedural
history of this case. Therefore, we have no reason to restate them.2
Appellant raises two issues for our review:
WHETHER THE TRIAL COURT ERRED IN DENYING
[APPELLANT] THE RIGHT TO WITHDRAW HIS GUILTY
PLEA?
WHETHER THE TRIAL COURT DENIED [APPELLANT] OF HIS
RIGHT TO [A] FAIR TRIAL?
(Appellant’s Brief at 4).3
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1
18 Pa.C.S.A. §§ 3502(a)(1); 903 (3502(a)(1) related); 3701(a)(1)(ii) and
(a)(1)(iii); 903 (3701(a)(1)(ii) and (a)(1)(iii) related); 2901(a)(1); 903
(2901(a)(1) related); 2901(a)(2); 903 (2901(a)(2) related); 901 (3921
related); 903 (3921 related); 901 (3923 related); 903 (3923 related); 2903;
903 (2903 related); 6105; 907, respectively.
2
The correct citations for the statutes for the offenses of kidnapping of a
minor for ransom and kidnapping of a minor to facilitate a felony are 18
Pa.C.S.A. § 2901(a.1)(1) and 18 Pa.C.S.A. § 2901(a.1)(2), respectively.
The Commonwealth initially charged Appellant with these crimes at six
counts but requested the court to enter nolle prosequi as to these six counts
(not seven counts, as stated in the court’s opinion) prior to Appellant’s guilty
plea. Additionally, the Commonwealth did not charge Appellant with
conspiracy to commit persons not to possess firearms or conspiracy to
commit possessing instruments of crime, and Appellant did not plead guilty
to those crimes.
3
Appellant makes no separate argument as to his second issue on appeal.
Instead, Appellant contends that the court’s denial of his motion to withdraw
his guilty plea also deprived Appellant of his right to a full and fair trial.
Thus, we address Appellant’s issues together.
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“At any time before the imposition of sentence, the court may, in its
discretion, permit, upon motion of the defendant, or direct, sua sponte, the
withdrawal of a plea of guilty or nolo contendere and the substitution of a
plea of not guilty.” Pa.R.Crim.P 591(A). Although there is no absolute right
to withdraw a guilty plea, properly received by the trial court, a pre-sentence
request should be liberally allowed. Commonwealth v. Forbes, 450 Pa.
185, 190, 299 A.2d 268, 271 (1973). “If the trial court finds ‘any fair and
just reason’, withdrawal of the plea before sentence should be freely
permitted, unless the prosecution has been ‘substantially prejudiced.’” Id.
at 191, 299 A.2d at 271. Our Supreme court recently modified what had
been increasingly interpreted as a bright-line rule regarding pre-sentence
requests to withdraw a plea:
Presently, we are persuaded by the approach of other
jurisdictions which require that a defendant’s innocence
claim must be at least plausible to demonstrate, in and of
itself, a fair and just reason for presentence withdrawal of
a plea. … More broadly, the proper inquiry on
consideration of such a withdrawal motion 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.
Commonwealth v. Carrasquillo, ___ A.3d ___, 2015 WL 3684430 at *8
(Pa. June 15, 2015) (holding there is no per se rule regarding pre-sentence
requests to withdraw pleas; court should consider plausibility, sincerity,
motivation, and timing of request; courts must also consider whether
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allowing withdrawal of plea will prejudice Commonwealth). Thus, the
decision to allow or deny a pre-sentence motion to withdraw a guilty plea
rests within the sound discretion of the trial court absent substantial
prejudice to the Commonwealth. See generally id.After a thorough review of the record, the briefs of the parties, the
applicable law, and the reasoned opinion of the Honorable Albert J.
Cepparulo, we conclude Appellant’s issues merit no relief. The trial court
opinion discusses and properly disposes of the questions presented. (See
Trial Court Opinion, filed September 5, 2014, at 10-15) (finding: Appellant’s
assertion of innocence was questionable; court believed Appellant engaged
in contrived plot to withdraw guilty plea as direct result of learning that
Commonwealth’s key witness/victim (Ms. Gasden) had died and would be
unavailable to testify at trial;4 record showed Appellant possessed ulterior
motive for request to withdraw guilty plea; further, permitting Appellant to
withdraw his plea would substantially prejudice Commonwealth; Ms. Gasden
died after Appellant had entered guilty plea and Appellant was aware of this
fact; Ms. Gasden was very cooperative with police throughout investigation,
and Commonwealth had total confidence in her testimony; defense intended
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4
Appellant pled guilty on October 22, 2013. Ms. Gasden died on December
6, 2013. On December 17, 2013, the date originally scheduled for
sentencing, Appellant made an oral motion to withdraw his guilty plea.
Appellant admitted he learned of Ms. Gasden’s death before moving to
withdraw his plea.
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to challenge at trial credibility of other witness/victim, Ms. Jones, as actually
having participated in hostage events (not victim of hostage events); Ms.
Gasden is now unavailable to corroborate Ms. Jones’ account of events; due
to overwhelming prejudice to Commonwealth, denial of Appellant’s motion to
withdraw plea, made for first time at initially scheduled sentencing hearing,
was proper under facts of case). Accordingly, we affirm the court’s denial of
Appellant’s pre-sentence motion to withdraw his guilty plea on the basis of
the trial court’s opinion.
Nevertheless, we are mindful of the United States Supreme Court’s
decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013), in which the Court expressly held that any fact
increasing the mandatory minimum sentence for a crime is considered an
element of the crime to be submitted to the fact-finder and found beyond a
reasonable doubt. Id. Here, the court imposed a mandatory minimum ten
(10) year sentence for Appellant’s burglary conviction under 42 Pa.C.S.A. §
9714 (sentences for second and subsequent offenses), and a mandatory
minimum five (5) year sentence for one of Appellant’s first-degree robbery
convictions under 42 Pa.C.S.A. § 9712 (sentences for offenses committed
with firearms). Consequently, we elect to review the legality of Appellant’s
sentence sua sponte. See Commonwealth v. Edrington, 780 A.2d 721(Pa.Super. 2001) (explaining challenge to application of mandatory
minimum sentence is non-waiveable challenge to legality of sentence, which
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this Court can raise sua sponte, assuming jurisdiction is proper).
Section 9714 sets forth a mandatory minimum sentence of ten (10)
years’ imprisonment where a defendant has previously been convicted of a
crime of violence. See 42 Pa.C.S.A. § 9714(a). Section 9714(d) of this
statute states that its provisions shall not be an element of the crime and
applicability of the statute shall be determined by the court at sentencing by
a preponderance of the evidence. 42 Pa.C.S.A. § 9714(d). Section 9712
sets forth a mandatory minimum sentence of five (5) years’ imprisonment
where a defendant has been convicted of a crime of violence if the person
visibly possessed a firearm or a replica of a firearm that placed the victim in
reasonable fear of death or serious bodily injury during the commission of
the offense. See 42 Pa.C.S.A. § 9712(a). Section 9712(b) of this statute
states that its provisions shall not be an element of the crime and
applicability of the statute shall be determined by the court at sentencing by
a preponderance of the evidence. 42 Pa.C.S.A. § 9712(b).
In Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en
banc), this Court addressed the constitutionality of a mandatory minimum
sentencing statute containing language similar to Section 9714(d) and
Section 9712(b). Relying on Alleyne, Newman held that Section 9712.1
(sentences for certain drug offenses committed with firearms) can no longer
pass constitutional muster as it “permits the trial court, as opposed to the
jury, to increase a defendant’s minimum sentence based upon a
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preponderance of the evidence that the defendant was dealing drugs and
possessed a firearm, or that a firearm was in close proximity to the drugs.”
Newman, supra at 98. This Court further held that the subsections of
Section 9712.1 are so “essentially and inseparably connected” that
severance of the statute is not possible, rendering the entire statute
unconstitutional. Id. at 102. Thus, this Court vacated Newman’s sentence
for possession of a controlled substance with the intent to deliver and
remanded for resentencing without imposition of the mandatory minimum
under Section 9712.1.5 See also Commonwealth v. Valentine, 101 A.3d
801 (Pa.Super. 2014) (extending logic of Alleyne and Newman to Sections
9712 and 9713 and holding those sections are likewise unconstitutional
insofar as they permit automatic increase of defendant’s sentence based on
preponderance of evidence standard).
The Alleyne Court carved out a narrow exception where a defendant’s
prior conviction is the “fact” triggering application of a mandatory minimum
sentence. Alleyne, supra at ___ n.1, 133 S.Ct. at 2160 n.1, 186 L.Ed.2d at
___ n.1. See also Commonwealth v. Reid, ___ A.3d ___, 2015 PA Super
135 (filed June 9, 2015) (explaining Alleyne did not overturn prior
precedent that prior convictions are sentencing factors and not elements of
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5
This Court also made clear that Alleyne is subject to limited retroactivity;
in other words, Alleyne is applicable only to criminal cases still pending on
direct review. Id. at 90. Because Newman’s case was still pending on direct
appeal, the holding in Alleyne applied.
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offenses; because Section 9714 provides mandatory minimum sentences
based on prior convictions, that statute is not unconstitutional under
Alleyne; court’s imposition of mandatory minimum sentence under Section
9714 was lawful); Commonwealth v. Miller, 102 A.3d 988, 995 n.5
(Pa.Super. 2014) (explaining fact of prior conviction does not need to be
submitted to fact-finder and found beyond reasonable doubt; Alleyne does
not prohibit mandatory minimum sentence based on fact of prior conviction).
In this case, the court imposed a ten (10) year mandatory minimum
sentence for Appellant’s burglary conviction under 42 Pa.C.S.A. § 9714
(sentences for second and subsequent offenses), and a five (5) year
mandatory minimum sentence for one of Appellant’s first-degree robbery
convictions under 42 Pa.C.S.A. § 9712 (sentences for offenses committed
with firearms). With respect to Appellant’s mandatory minimum sentence
for his burglary conviction, the record shows Appellant had a prior conviction
for first-degree robbery in October 2009, for which Appellant received a
sentence of three and one-half (3½) to seven (7) years’ imprisonment, plus
four (4) years’ probation. Because the court imposed the ten (10) year
mandatory minimum sentence based on Appellant’s prior conviction of a
crime of violence, the court’s imposition of the mandatory minimum
sentence under 42 Pa.C.S.A. § 9714 was lawful. See Alleyne, supra;Reid, supra; Miller, supra. See also 42 Pa.C.S.A. § 9714(g) (defining
first-degree robbery as “crime of violence” for purposes of statute).
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Regarding the mandatory minimum sentence related to Appellant’s
robbery conviction,6 the record makes clear Appellant possessed a gun
throughout the events at issue. Specifically, Appellant and one of his
cohorts held the victims hostage at gunpoint for approximately nine hours
during the evening of April 21, 2013 into the morning of April 22, 2013; on
the morning of April 22, 2013, Appellant and his cohorts forced one of the
victims to attempt to withdraw approximately $80,000.00 from a PNC Bank.
Notwithstanding Appellant’s guilty plea to these events, based on this
Court’s decision in Newman and its progeny that Section 9712 is
unconstitutional in its entirety, the trial court’s imposition of the mandatory
minimum sentence under that statute was unlawful. See Newman, supra;
Valentine, supra. Accordingly, we affirm Appellant’s convictions, but we
vacate the judgment of sentence and remand for resentencing without
imposition of the mandatory minimum sentence under 42 Pa.C.S.A. § 9712.
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction is relinquished.
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6
The court imposed the mandatory minimum sentence for Appellant’s
robbery conviction at Count 3. See 18 Pa.C.S.A. § 3701(a)(1)(ii)
(explaining person is guilty of robbery if, in course of committing theft, he
threatens another with or intentionally puts him in fear of immediate serious
bodily injury). This first-degree robbery conviction constitutes a “crime of
violence” for purposes of Section 9712. See 42 Pa.C.S.A. § 9712(a)
(referring to Section 9714(g) for definition of crimes which constitute crimes
of violence). See also 42 Pa.C.S.A. § 9714(g).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
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