Com. v. Cobbs, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DERRICK COBBS
Appellant No. 1399 WDA 2021
Appeal from the Judgment of Sentence Entered October 28, 2021
In the Court of Common Pleas of Westmoreland County
Criminal Division at No: CP-65-CR-0002069-2010
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED: March 28, 2023
Appellant, Derrick Cobbs, appeals from the October 28, 2021 judgment
of sentence imposing an aggregate five to ten years of incarceration for rape,
involuntary deviate sexual intercourse (“IDSI”), sexual assault, and
aggravated assault.1 We affirm.
The Commonwealth commenced this action by criminal complaint on
May 7, 2010. A jury trial commenced on November 2, 2010 and ended in a
mistrial the next day. The subsequent procedural history is lengthy, complex,
and rife with irregularities. During the three years following the mistrial, the
parties litigated Appellant’s motions for suppression of evidence, termination
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3121, 3123, 3124.1, and 2702.
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of this prosecution for double jeopardy, and discovery of records. The trial
court granted Appellant’s discovery motion but denied the others.
On September 8, 2014, after an order setting trial for the November
2014 term, Appellant pled guilty to the aforementioned offenses. Also on that
date, the trial court imposed the term of incarceration set forth above and
referred the matter to the Sexual Offenders Assessment Board (“SOAB”). The
sentence was to run concurrently to other sentences Appellant was already
serving—an aggregate 21 to 45 years of incarceration for aggravated assault
of a prison guard and drug possession. N.T. Guilty Plea, 9/8/14, at 8-9; N.T.
Hearing, 9/30/19, at 24-28. Plea counsel questioned whether imposition of
the term of incarceration should await the conclusion of the SOAB assessment
and subsequent hearing to determine whether Appellant was a sexually violent
predator (“SVP”),2 but the trial court chose to impose the sentence of
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2At a subsequent hearing on his alleged ineffectiveness, plea counsel
explained:
Because the court began doing it that way because we had
cases where we reached an agreement where they would have
been taken off the plea list. The person did the guilty plea but
was never – never received a sentence would undergo the
Megan’s Law assessment, then would come back, four, five, six
months later and then the person would say, I want to withdraw
my plea, and because they weren’t sentenced, it was supposed to
be liberally granted, and it was wreaking havoc with those types
of cases.
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incarceration and proceed with the SVP determination afterward. N.T. Guilty
Plea, 9/8/14, at 4. Many of the complications in this matter arise from this
fact.
On September 29, 2014, Appellant filed a pro se motion to withdraw his
guilty plea, alleging that defense counsel pressured him to plead guilty against
his wishes. The trial court denied the motion by order of October 20, 2014,
without prejudice to file a counseled motion, as Appellant remained
represented at the time.
On February 9, 2015, Appellant filed a premature pro se petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.
The trial court denied the petition by order of March 18, 2015, reasoning that
Appellant’s SVP status had yet to be determined and therefore his sentence
was not final. The order did not reference the fact that Appellant remained
represented by counsel when he filed the petition.
An evidentiary hearing on Appellant’s SVP status was finally scheduled
for March 27, 2017, but it was postponed at Appellant’s request. On April 6,
2018, the trial court signed an order permitting Appellant to hire an expert,
at the court’s expense, to assist him in the SVP proceeding.
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So this was the courts’ response to try to bring some finality
to not being able to just willy-nilly withdraw your plea simply
because I want to.
N.T. Hearing, 9/30/19, at 42.
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Subsequently, plea counsel filed a motion to withdraw. That motion was
the subject of a May 24, 2018, hearing at which trial court granted counsel’s
motion and granted Appellant’s request to proceed pro se. On January 24,
2019, however, the trial court appointed present counsel to assist Appellant
in challenging his still-pending SVP determination.
On August 2, 2019, counsel filed a (premature) PCRA petition,
purportedly amending the prior pro se petition, in which Appellant challenged
the voluntariness of his plea, and asserted that prior defense counsel was
ineffective for failing to file a motion to withdraw the plea. Even though
Appellant’s SVP determination remained outstanding, the trial court
entertained the petition on the merits and conducted an evidentiary hearing
on September 30, 2019. The trial court, after considering briefs from the
parties, entered an order on December 23, 2020, directing the court
administrator to schedule a hearing on Appellant’s SVP status. The trial court
denied relief on Appellant’s challenges to the validity of his plea without
prejudice to raise those issues again after the finalization of his judgment of
sentence.
Notwithstanding all the foregoing, Appellant filed a counseled motion to
withdraw his guilty plea on September 8, 2021. That motion was the subject
of a hearing on October 28, 2021. At that hearing, the trial court opined in
part as follows:
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I mean, there’s no doubt that, again there’s no easy way to
say this, but this case has been a mess for a long time. And none
of that was [Appellant’s] fault, as far as I can tell. [….]
The courts are very interested in whether – their [sic]
concerned about using a plea as a sentence testing device. And
year, I think it’s correct given the fact that the SVP designation
wasn’t completed, it’s not a final sentence yet. But that – If I can
choose my words carefully, the technical sense that – if you go to
the substance of what the law is supposed to do – you may get
the sentence, he got everything but the fact that he didn’t know
if he had an SVP or not.
So my concern here is allowing him to withdraw the plea
here, I’m, in the subsequent sentence, allowing this to be used as
a sentence testing device.
N.T. Hearing, 10/28/21, at 12-13.
The trial court denied Appellant’s motion to withdraw his plea, and the
Commonwealth withdrew its request to have Appellant designated an SVP.
Id. at 21. The trial court explained to Appellant that this brought the trial
court proceedings to a close. Id. at 21-22. The trial court further explained
that its order was not a re-sentencing, but a finalization of the sentence that
had already been imposed more than seven years earlier.3 Id. at 25. The
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3 There is some confusion in the record as to whether Appellant served out
his ten-year maximum term in this case prior to the October 28, 2021 hearing.
Because the Commonwealth filed its criminal complaint in this matter in May
of 2010, and because the trial court on September 8, 2014, imposed the
present sentence to run concurrently with other, longer sentences Appellant
was already serving, it is possible, depending on credit for time received, that
Appellant has completed his sentence. The parties and the trial court
acknowledged as much on the record but left the matter unresolved. N.T.
Hearing, 10/28/21, at 4-5, 29-31. Proper computation of the running of
Appellant’s sentence is not within the purview of this Court. Regardless, as
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trial court nevertheless expressly reinstated Appellant’s post-sentence and
appellate rights and explained those rights to him. Id. at 21-22; 27; 29. The
trial court also noted that Appellant’s rape conviction carried with it a lifetime
registration requirement. Id. at 32.
Appellant filed this timely direct appeal on November 23, 2021. He
presents two questions:
I. Whether the lower court erred in its denial of the amended
PCRA petition when it failed to find plea counsel ineffective
for failing to withdraw [Appellant’s] guilty plea as
[Appellant] requested him to do within the ten-day time
frame?
II. Whether the lower court erred in not allowing Appellant to
withdraw his guilty plea nunc pro tunc?
Appellant’s Brief at 4.
The trial court addressed both questions and found that neither merited
relief. Regarding Appellant’s first question presented, the court found that
review of counsel’s effectiveness was appropriate on direct appeal in this case.
In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court
reaffirmed that claims of ineffective assistance of counsel must be deferred to
collateral review, with two limited exceptions. Pertinent for our purposes is
the first of these: “[W]e appreciate that there may be extraordinary
circumstances where a discrete claim (or claims) of trial counsel
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this is a direct appeal, Appellant’s possible completion of the original sentence
is no impediment to our review.
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ineffectiveness is apparent from the record and meritorious to the extent that
immediate consideration best serves the interests of justice[.]” Id. at 563.
The Holmes Court gave trial courts discretion to review such claims. Id.
Instantly, the trial court found extraordinary circumstances based upon
the procedural history of this case. The trial court noted the multiple motions
and petitions Appellant filed challenging his guilty plea, and the numerous
delays in finalizing Appellant’s sentence, “which were in no way attributable
to a lack of diligence on the part of [Appellant].” Trial Court Opinion, 2/2/22,
at 12. “Thus, through no fault of his own, the [Appellant] suffered substantial
delay in his ability to present issues of ineffective assistance of counsel and
will suffer additional delay unless these issues are considered in this direct
appeal.” Id. at 12-13.
We are perplexed by this, inasmuch as Appellant filed a counseled
motion to withdraw his guilty plea and a counseled, premature PCRA petition
challenging the validity of his guilty plea. The trial court reviewed those filings
and denied them on the merits. We therefore conclude that prior counsel’s
alleged ineffectiveness for failing to file a requested motion to withdraw
Appellant’s guilty plea is not properly before us on this direct appeal.4 The
trial court abused its discretion in concluding otherwise.
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4 Counsel’s failure to file a motion to withdraw the plea with in the “ten-day
time frame,” Appellant’s Brief at 4, an apparent reference to the ten-day
deadline for filing post-sentence motions (Pa.R.Crim.P. 720(A)), has no
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We now turn to the merits of Appellant’s attempt to withdraw his guilty
plea, which Appellant addresses in his second question presented.5 Rule 590
of the Pennsylvania Rules of Criminal Procedure governs guilty pleas and plea
agreements, and the official comment thereto lists seven inquiries for the trial
court to make at a plea colloquy. Pa.R.Crim.P. 590. Rule 591 permits
withdrawal of a plea as follows: “At any time before the imposition of sentence,
the court may, in its discretion, permit, upon motion of the defendant, […] the
withdrawal of a plea of guilty […] and the substitution of a plea of not guilty.”
Pa. R. Crim. P. 591(A). Thus, the standard for pre-sentence plea withdrawal
is a very liberal one:
(1) there is no absolute right to withdraw a guilty plea; (2)
trial courts have discretion in determining whether a withdrawal
request will be granted; (3) such discretion is to be administered
liberally in favor of the accused; and (4) any demonstration by a
defendant of a fair-and-just reason will suffice to support a grant,
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bearing on the outcome of this appeal. As we discuss in more detail in the
main text, Appellant’s motion to withdraw lacked merit, as it was a sentence
testing device in this case. Moreover, the trial court and the parties treated
Appellant’s sentence as non-final while the SVP hearing was pending. Thus,
the ten-day period referenced in Appellant’s first question presented did not
commence until October 28, 2021. And, in an abundance of caution, the trial
court reinstated Appellant’s post-sentence and appellate rights on that date.
5 The question presented, quoted in the main text, challenges the trial courts’
refusal to permit plea-withdrawal nunc pro tunc. In substance, Appellant’s
argument addresses the merits of the plea withdrawal issue without
addressing why Appellant believes nunc pro tunc relief was necessary.
Because Appellant attempted to withdraw his plea while jurisdiction remained
with the trial court, and because the trial court addressed the issue on the
merits, we confine our analysis to the merits of the issue.
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unless withdrawal would work substantial prejudice to the
Commonwealth.
Commonwealth v. Garcia, 280 A.3d 1019, 1023 (Pa. Super. 2022).
The standard for post-sentence withdrawal of a plea is much stricter:
[P]ost-sentence motions for withdrawal are subject to
higher scrutiny since courts strive to discourage entry of
guilty pleas as sentence-testing devices. A defendant must
demonstrate that manifest injustice would result if the court were
to deny his post-sentence motion to withdraw a guilty plea.
Manifest injustice may be established if the plea was not tendered
knowingly, intelligently, and voluntarily. In determining whether
a plea is valid, the court must examine the totality of
circumstances surrounding the plea. A deficient plea does not per
se establish prejudice on the order of manifest injustice.
Commonwealth v. Kehr, 180 A.3d 754, 756–57 (Pa. Super. 2018)
(emphasis added). “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.” Commonwealth v. Kpou, 153 A.3d 1020,
1024 (Pa. Super. 2016).
Appellant believes we should consider his motion a pre-sentence motion
to withdraw because his sex offender status was not final as of the dates of
any of his various attempts to withdraw his plea. We disagree. The instant
record reflects that Appellant never sought to withdraw his guilty plea until
after the trial court imposed five to ten years of incarceration. Appellant’s SVP
determination was outstanding at the time of his various attempts to withdraw
his plea, but the Commonwealth ultimately withdrew its request to have
Appellant declared an SVP. Thus, while the parties and the court were treating
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Appellant’s judgment of sentence as nonfinal when he began seeking to
withdraw his plea, he was aware of the term of incarceration. And the term
of incarceration was never modified. Because the law discourages the use of
guilty pleas as sentence-testing devices, and because Appellant did not seek
to withdraw his plea in this case until after he was aware of his term of
incarceration, we analyze his challenge under the post-sentence standard.
The trial court assessed Appellant’s plea colloquy as follows:
In [Appellant’s] case, a consideration of the totality of the
circumstances leads to the conclusion that, despite an abbreviated
colloquy, [Appellant] was fully cognizant of the nature of the guilty
plea proceeding, the rights he was forfeiting by pleading guilty,
and the consequences attendant to the entry of a guilty plea.
Initially, it cannot be ignored that [Appellant’s] guilty plea followed
his recent experiences in participating in two jury trials in other
cases which went to verdict. [Appellant] was represented in all of
his cases by the same trial counsel who was well familiar with
[Appellant’s] concerns and intentions. [Appellant], having twice
exercised his rights to a jury trial, did not require a detailed
explanation of the process or nature of the constitutional right to
a trial by jury. Focusing on the present case, [Appellant] had
participated in the selection of a jury, listened to the court’s
opening instructions and counsels’ opening arguments, and was
able to observe the victim’s full testimony before a mistrial was
declared. It, therefore, cannot be said that [Appellant] was
unaware of the facts which would be considered as a basis for his
plea, having sat through the victim’s detailed in-person testimony.
Additionally, prior to [Appellant’s] entry of his plea, defense
counsel reviewed with him the rights which are given up by
pleading guilty, the nature of the charges, the possible defenses,
and the consequences of entering a plea. At the time of
[Appellant’s] plea, the court, who was familiar with [Appellant]
from his previous court appearances, reviewed the penalties with
[Appellant] and the elements of the crimes to which he was
pleading guilty. The court then offered [Appellant] an opportunity
to ask questions but he replied that he had none. Although
[Appellant] testified at the evidentiary hearing that he was not
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aware that he was entering a plea of guilty to rape, this is
contradicted by the record which reflects that the court specifically
explained to [Appellant] that he was entering a plea to rape and
that the Commonwealth would have to prove that [Appellant]
engaged in sexual intercourse with the victim by force or threat of
force. When the court asked whether he had any questions about
the charges, [Appellant] answered that he did not.
Trial Court Opinion, 2/2/22, at 22-23.
On review, the record supports the trial court’s conclusion that the
totality of the circumstances reveals a knowing, intelligent, and voluntary
plea. Though the colloquy was very short, Appellant was informed of the
charges he was pleading to. Contrary to Appellant’s argument, the trial court
informed him he was pleading guilty to rape and explained what the
Commonwealth would have to prove to obtain a conviction on that charge.
N.T. Guilty Plea, 9/8/14, at 6. Appellant’s claim that he believed he was
pleading guilty to lesser offenses is belied by the record. Nor is there any
evidence to support Appellant’s assertion that he was coerced into the plea.
Further, defense counsel informed Appellant that, based on his past
record, his guilty plea in this case would subject him to lifetime registration as
a sex offender. N.T. Hearing, 9/30/19, at 31-32. Counsel explained to
Appellant at the time of his plea that receiving his sentence prior to the SVP
determination would make it more difficult to later withdraw his plea. Id. at
42-43. Defense counsel also testified that that the victim’s testimony (which
was complete before a mistrial was declared), played a role in the decision to
plead guilty. N.T. Hearing, 9/30/19, at 23-24.
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For these reasons, we believe, given the totality of the circumstances,
that Appellant entered a knowing, intelligent, and voluntary plea. We discern
no manifest injustice in the trial court’s decision to deny Appellant’s motion to
withdraw his guilty plea.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2023
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