Commonwealth v. Kpou

J-S81039-16
2016 Pa. Super. 308
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY KPOU
Appellant No. 690 EDA 2016
Appeal from the Judgment of Sentence February 3, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009272-2015
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 29, 2016
Larry Kpou (“Appellant”) appeals from the judgment of sentence
entered by the Court of Common Pleas of Philadelphia County after it
accepted his guilty plea to Possession With Intent to Deliver (“PWID”), to
wit, crack cocaine and marijuana, and Criminal Conspiracy.1 Sentenced to a
negotiated term of 11½ to 23 months’ incarceration with immediate parole,
plus three years’ reporting probation, Appellant contends the court
erroneously refused to grant his post-sentence motion to withdraw his plea.
We affirm.
The plea court provides an apt history of the case as follows:
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*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
J-S81039-16
On February 3, 2016, The Honorable Mia R. Perez conducted a
guilty plea colloquy with the Defendant [hereinafter “Appellant”],
Larry Kpou, who had been sworn under oath. Appellant pled
guilty…. Judge Perez engaged in a specific line of inquiry,
advising Appellant on the nature of the charges, the rights he
was giving up, and the possible sanctions the court was
authorized to impose. N.T. 2/3/16 at 2-17. Judge Perez
requested a recitation of the facts from the Assistant District
Attorney, [who asserted that, on June 19, 2015, a Narcotics
Field Unit of the Philadelphia Police Department observed one
Mr. Lugman Garbey sell marijuana to a proven, reliable
confidential informant (“CI”) as part of a controlled buy carried
out at the address of 6311 West Girard Avenue.
On June 21, 2015, the Narcotics Unit arranged for another
controlled buy at the address and observed Mr. Garbey take the
buy money from the CI. Garbey then summoned Appellant, who
handed two packets of marijuana to the CI on the front steps..
On June 24, 2015, officers arrested Garbey and Appellant. A
search of Appellant’s person incident to his arrest disclosed two
packets of marijuana. A subsequent search of 6311 West Girard
Avenue recovered three packets of crack cocaine].
Having heard the facts, Judge Perez asked Appellant, “[D]id you
hear the facts as recited by the District Attorney?” Id. at 16.
Appellant replied, “Yes.” Id. The Judge then asked, “Are those
the facts that you’re pleading guilty to here today?” and
Appellant replied, “Yes.” Id. Appellant did not raise any issue
with the facts or otherwise.
Judge Perez then imposed the sentence that had previously been
negotiated by the parties: 11 ½ -23 months’ incarceration with
immediate parole plus 3 years of reporting probation.
Trial Court Opinion, filed 6/2/16, at 1-2.
On February 5, 2016, Appellant filed a motion to withdraw his guilty
plea on the asserted basis that he was “actually innocent” of the crimes
charged. The court denied Appellant’s motion on March 1, 2016, however,
and this timely appeal followed.
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Appellant presents one question for our consideration:
[DID] THE TRIAL COURT ERR[] BY DENYING MR. KPOU’S POST-
SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA AS HE
ALLEGED THAT HE WAS ACTUALLY INNOCENT?
Appellant’s brief at 7.
Appellant argues that a manifest injustice would occur if he were not
permitted to withdraw his guilty plea because he has asserted that he is
actually innocent of the offenses in question. In response, the
Commonwealth claims that Appellant’s bald assertion of innocence fails to
satisfy the more stringent “manifest injustice” standard predicating
withdrawal on a defendant’s demonstration that his or her plea was
unknowingly, unintelligently, or involuntarily tendered.
This Court has delineated the principles and standards that govern a
defendant’s request to withdraw a guilty plea:
“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); Commonwealth v. Santos, 301 A.2d 829, 830 (Pa.
1973). “Although there is no absolute right to withdraw a guilty
plea, properly received by the trial court, it is clear that a
request made [b]efore sentencing ... should be liberally
allowed.” Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa.
1973). “Thus, in determining whether to grant a pre-sentence
motion for withdrawal of a guilty plea, ‘the test to be applied by
the trial courts is fairness and justice.’” Id. at 271. “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. As a
general rule, “the mere articulation of innocence [is] a ‘fair and
just’ reason for the pre-sentence withdrawal of a guilty plea
unless the Commonwealth has demonstrated that it would be
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substantially prejudiced.” Commonwealth v. Katonka, 33
A.3d 44, 46 (Pa.Super. 2011) (en banc ) [ ].
[Of the considerations outlined in Forbes, “the critical one is the
presence or lack of prejudice to the Commonwealth.”
Commonwealth v. Boofer, 375 A.2d 173, 174 (Pa.Super.
1977) (citing Commonwealth v. McLaughlin, 366 A.2d 238,
241 (Pa. 1976) (stating: “[T]he existence of substantial
prejudice to the Commonwealth is the crucial factor in
determining whether to allow a presentence withdraw of a guilty
plea”)). Generally speaking, “prejudice would require a showing
that due to events occurring after the plea was entered, the
Commonwealth is placed in a worse position than it would have
been had trial taken place as scheduled.” Commonwealth v.
Kirsch, 930 A.2d 1282, 1286 (Pa.Super. 2007), appeal denied,
945 A.2d 168 (Pa. 2008). When a guilty plea is withdrawn
before sentencing, the withdrawal usually does not substantially
prejudice the Commonwealth if it simply places the parties “back
in the pretrial stage of proceedings.” Id. Mere speculation that
witnesses would not appear at a subsequent trial or would
change their stories does not alone rise to the level of
substantial prejudice. McLaughlin, 366 A.2d at 241.]
In contrast, after the court has imposed a sentence, a defendant
can withdraw his guilty plea “only where necessary to correct a
manifest injustice.” Commonwealth v. Starr, 301 A.2d 592,
595 (Pa. 1973). “[P]ost-sentence motions for withdrawal are
subject to higher scrutiny since courts strive to discourage the
entry of guilty pleas as sentencing-testing devices.”
Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa.Super. 2010),
appeal denied, 32 A.3d 1276 (Pa. 2011).
***
To be valid [under the “manifest injustice” standard], a guilty
plea must be knowingly, voluntarily and intelligently entered.
Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.Super.
2003). “[A] manifest injustice occurs when a plea is not
tendered knowingly, intelligently, voluntarily, and
understandingly.” Commonwealth v. Gunter, 771 A.2d 767,
771 (Pa. 2001). The Pennsylvania Rules of Criminal Procedure
mandate pleas be taken in open court and require the court to
conduct an on-the-record colloquy to ascertain whether a
defendant is aware of his rights and the consequences of his
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plea. Commonwealth v. Hodges, 789 A.2d 764, 765
(Pa.Super. 2002) (citing Pa.R.Crim.P. 590). Under Rule 590, the
court should confirm, inter alia, that a defendant understands:
(1) the nature of the charges to which he is pleading guilty; (2)
the factual basis for the plea; (3) he is giving up his right to trial
by jury; (4) and the presumption of innocence; (5) he is aware
of the permissible ranges of sentences and fines possible; and
(6) the court is not bound by the terms of the agreement unless
the court accepts the plea. Commonwealth v. Watson, 835
A.2d 786 (Pa.Super. 2003). The reviewing [c]ourt will evaluate
the adequacy of the plea colloquy and the voluntariness of the
resulting plea by examining the totality of the circumstances
surrounding the entry of that plea. Commonwealth v.
Muhammad, 794 A.2d 378 (Pa.Super. 2002). 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. Pollard, supra.
Commonwealth v. Prendes, 97 A.3d 337, 351-54 (Pa.Super. 2014)
(parallel citations omitted).
Initially, we note that Appellant effectively concedes that he tendered
a knowing, voluntary, and intelligent guilty plea, a position consonant with
our review of the guilty plea colloquy and the record at-large. He argues,
instead, that his post-sentence assertion of innocence, alone, is enough to
demonstrate the manifest injustice necessary to secure a post-sentence
withdrawal of a guilty plea. Nothing in our jurisprudence supports such a
proposition, which runs counter to established precepts that reject defendant
attempts to disavow self-incriminating statements made at a plea hearing
absent a showing of coercion, fundamental misunderstanding, or the like.
See Pollard, at 523 (holding “[a] person who elects to plead guilty is bound
by the statement he makes in open court while under oath and he may not
later assert grounds for withdrawing the plea which contradict the
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statements he made at his plea colloquy.”). Moreover, as noted above in
our standard of review, our courts have recognized the relevance of an
assertion of innocence only in the pre-sentence context, explaining that the
assertion may represent a “fair and just reason” for pre-sentence withdrawal
of a guilty plea. See Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa.
2015).2
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2
Nearly nine months before Appellant’s guilty plea and subsequent motion
to withdraw, our Supreme Court decided in Carrasquillo that a bare
assertion of innocence does not provide a per se “fair and just reason” for a
pre-sentence withdrawal of a guilty plea. In so holding, the Court eschewed
the former “bright line rule” applicable to pre-sentence motions in favor of
an inquiry into “whether the accused has made some colorable
demonstration, under the circumstances, such that permitting withdrawal of
the plea would promote fairness and justice.” Id. at 129. Applying this
standard to the facts before it, the Court observed:
This case, in our view, illustrates why the existing per se
approach to innocence claims is unsatisfactory. Here,
Appellant’s assertion was first made in sentencing allocution,
after the close of the evidentiary record . . . . No request was
made to reopen the record for an orderly presentation in support
of Appellee’s request. Moreover, the bizarre statements made
by Appellee in association with his declaration of innocence
wholly undermined its plausibility, particular[ly] in light of the
Commonwealth’s strong evidentiary proffer at the plea hearing.
In the circumstances, the common pleas court should not have
been required to forego sentencing; rather, we find that it acted
within its discretion to refuse the attempted withdrawal of the
plea.
Id., at 1292-93.
Here, as it is clear that Appellant’s bare assertion of innocence would
fail to meet the more lenient standard applicable to pre-sentence motions to
withdrawals, given the record before us, it follows a fortiori that it cannot
(Footnote Continued Next Page)
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Indeed, this Court has held that post-sentence claims of innocence do
not demonstrate manifest injustice, see Commonwealth v. Myers, 642
A.2d 1103, 1108 (Pa.Super. 1994) (holding “[a] defendant’s post-sentence
recantation of guilt does not rise to the level of prejudice on the order of
manifest injustice sufficient to require that he be permitted to withdraw his
plea of guilty.”), and Appellant presents no meaningful argument or legal
theory on which to distinguish his case from such precedent. This is
particularly so where, again, Appellant advances no claim of an unknowing,
involuntary, or unintelligent plea. Accordingly, we discern no merit to the
present appeal.
Judgment of sentence is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2016
_______________________
(Footnote Continued)
meet the heightened standard of manifest injustice that applies to his post-
sentence withdrawal of his plea.
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