Com. v. Lashinsky, J.

J-S07013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN F. LASHINSKY,
Appellant No. 1194 MDA 2014
Appeal from the Judgment of Sentence June 2, 2014
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0002217-2013
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 25, 2015
John F. Lashinksy (Appellant) appeals from the judgment of sentence
of two years’ probation, imposed June 2, 2014, following his plea of guilty to
two counts of disorderly conduct.1 We affirm.
In December 2013, Appellant was charged with stalking and
harassment for conduct directed toward the victim, Joan Colombero.2
Thereafter, in June 2014, Appellant entered into a negotiated plea
agreement, pursuant to which Appellant agreed to plead guilty to two counts
of disorderly conduct in exchange for a recommendation from the
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1
18 Pa.C.S. § 5503(a)(4).
2
Respectively, 18 Pa.C.S. §§ 2709.1(a)(1) and 2709(a)(2.)
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Commonwealth for a two-year probationary sentence, as well as an order
directing no contact with the victim.
With the assistance of counsel, Appellant completed a written guilty
plea colloquy. Appellant claims to suffer from post-traumatic stress disorder
(PTSD) brought on by the loss of his eyesight. Counsel read the form to
Appellant and entered hand-written responses as necessary. Appellant
initialed each page and signed the colloquy, affirming that his plea was
knowing and voluntary.
Following counsel’s explanation of the manner in which Appellant’s
written colloquy was completed, the trial court accepted it into the record.
The court conducted an oral colloquy, whereupon the court accepted
Appellant’s plea and imposed the Commonwealth’s sentencing
recommendation.
Appellant timely filed a post-sentence motion, seeking to withdraw his
plea on the ground that his PTSD rendered his plea invalid. Appellant also
claimed the probation department sought to impose “domestic violence
conditions” on him that were in violation of his plea agreement. 3 Following a
hearing, the trial court denied Appellant’s motion. Nevertheless, the court
clarified that Appellant’s probation “should not be treated as a specific
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3
The record indicates that Appellant’s probation officer intended to require
Appellant to attend a “batterer’s intervention class.” Notes of Testimony
(N.T.), 6/24/2014, at 4.
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domestic violence case in their probation conditions.” See Trial Court Order,
7/16/2014 (emphasis in original). Appellant timely appealed and filed a
court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed a
responsive opinion.
The sole issue on appeal is whether the trial court erred in denying
Appellant’s motion to withdraw his guilty plea. “[A] defendant has no
absolute right to withdraw a guilty plea; rather, the decision to grant such a
motion lies within the sound discretion of the trial court.” Commonwealth
v. Muhammad, 794 A.2d 378, 382 (Pa. Super. 2002). After imposition of
sentence, a defendant must demonstrate “prejudice on the order of manifest
injustice … before withdrawal is properly justified.” Id. at 383 (quoting
Commonwealth v. Carpenter, 725 A.2d 154, 164 (Pa. 1999)). “A plea
rises to the level of manifest injustice when it was entered into involuntarily,
unknowingly, or unintelligently.” Id. (quoting Commonwealth v. Stork,
737 A.2d 789, 790 (Pa. Super. 1999)).
To ascertain whether Appellant acted in such manner, we must
examine the guilty plea colloquy. The colloquy must inquire into
the following areas: (1) the nature of the charges; (2) the
factual basis of the plea; (3) the right to trial by jury; (4) the
presumption of innocence; (5) the permissible range of
sentences; and (6) the judge's authority to depart from any
recommended sentence. This 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.
Id. at 383-84 (internal quotations and citations omitted).
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According to Appellant, the trial court was specifically apprised of
Appellant’s physical and mental limitations. Appellant asserts that the
written colloquy “definitely stated” that his PTSD “impacted [his] ability to
understand what he was doing by entering the plea.” Appellant’s Brief, at
14. Appellant concludes that these factors obligated the trial court “to probe
deeper” into whether Appellant’s plea was truly voluntary and that its failure
to do so was “an abrogation of its obligations.” Id. at 14-15. We disagree.4
First, the record does not support Appellant’s assertion that the written
colloquy stated “definitely” that Appellant’s ability to understand the plead
proceedings was compromised. To the contrary, Question 45 of the written
colloquy asked, “Have you ever had a mental illness that would affect your
ability to understand your rights or these proceedings, or that would affect
your ability to act voluntarily in entering this plea?” Appellant’s Written
Colloquy, 6/9/2014, at 5 (unnumbered). Appellant answered, “No.” Id. In
this context, Appellant noted further that he had PTSD brought on by his
loss of sight. Id. However, Appellant did not assert, or even suggest, that
his condition impacted his ability to understand his rights or act voluntarily.
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4
In the summary of argument section of his brief, Appellant asserts that the
trial court “erred when it denied Appellant the opportunity to present a
complete record of [his] impairment due to an erroneous evidentiary ruling
at the hearing on [his] post-sentence motion.” Appellant’s Brief, at 12.
Because the record is devoid of support for this assertion, we deem it
frivolous. Further, Appellant makes no effort to develop an argument in this
regard. Thus, it is waived. See McEwing v. Lititz Mut. Ins. Co., 77 A.3d
639, 647 (Pa. Super. 2013).
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Second, we have reviewed the oral colloquy of the trial court and
discern no error. Counsel specifically noted for the court Appellant’s
condition. Thereafter, the court inquired whether (1) Appellant was entering
his plea voluntarily; (2) he understood the charges against him; (3)
Appellant agreed there was a factual basis for his plea; (4) he understood
his right to a jury trial and the presumption of innocence; (5) he understood
the range of sentences and fines for the offenses charged; and (6) he
understood that the court was not bound by the terms of the plea
agreement unless accepted by the court. See N.T., 6/2/2014, at 4-6. To
each question, Appellant answered “yes,” or “I do,” or “I understand.” Id.
Appellant is bound by his answers. See Commownealth v. Barnes, 687
A.2d 1163, 1167 (Pa. Super. 1996). Therefore, we conclude that Appellant’s
colloquy was adequate and that his plea was voluntary. See Muhammad,
794 A.2d at 383-84.
Appellant has failed to demonstrate prejudice on the order of manifest
injustice. Id. Accordingly, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2015
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