Com. v. Robichaw, R.

J-S16026-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RENALDO M. ROBICHAW :
:
Appellant : No. 2338 EDA 2022
Appeal from the Judgment of Sentence Entered August 30, 2022
In the Court of Common Pleas of Montgomery County
Criminal Division at CP-46-CR-0000578-2020
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED JUNE 9, 2023
Renaldo M. Robichaw (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to a single count of fleeing or attempting
to elude a police officer.1 We affirm.
The trial court explained:
On December 3, 2019, on Interstate 76 East, [… Appellant]
was operating a motor vehicle and was given visual and audible
signals by authorities to stop the vehicle. [Appellant] refused to
bring his vehicle to a stop and proceeded to flee. Authorities
pursued [Appellant] for several miles with their lights and sirens
activated, but [Appellant] continued to refuse to bring the vehicle
to a stop. This pursuit continued at a high speed until the vehicle
operated by [Appellant] crashed on a [] street in Philadelphia, PA.
Authorities subsequently apprehended [Appellant] after he
attempted to abscond by foot.
On August 30, 2022, the court began a jury trial and,
following testimony from one (1) witness, [Appellant]
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1 18 Pa.C.S.A. § 3733 (a)(2)(iii).
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subsequently decided to enter into a negotiated plea agreement
in which he pled guilty to [fleeing or attempting to elude a police
officer]. During this process, [Appellant] completed a written
guilty plea colloquy and both defense counsel and the court
administered an oral guilty plea colloquy. That same date, as part
of the plea agreement, the court imposed a sentence of [] 11½ to
[] 23 months of imprisonment with credit for time served from
December 3, 2019 to August 30, 2022.
Trial Court Opinion, 1/6/23, at 1-2 (footnote omitted).
With credit for time served, Appellant had completed his sentence when
he entered his guilty plea. Although represented by counsel, Appellant filed a
pro se motion to withdraw his plea on September 7, 2022.2 On September
12, 2022, Appellant filed a pro se notice of appeal.3 Appellant and the trial
court have complied with Pa.R.A.P. 1925.
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2 There is no right to hybrid representation either at trial or on appeal. See
Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013). When a
defendant who is represented files a pro se motion, brief, or petition, the court
should not rule on the motion but forward the document to counsel, as the
trial court did in the instant matter. See id. at 1258. Courts in this
Commonwealth “will not accept a pro se motion while an appellant is
represented by counsel; indeed, pro se motions have no legal effect and,
therefore, are legal nullities.” Commonwealth v. Williams, 151 A.3d 621,
623 (Pa. Super. 2016) (citation omitted).
3 The appeal is proper. Although Appellant was represented when he filed the
pro se notice of appeal, “this Court is required to docket a pro se notice of
appeal despite Appellant being represented by counsel.” Williams, 151 A.3d
at 624. Also, Appellant purported to appeal on September 12, 2022, from
the judgment of sentence entered “September 30, 2022.” On January 23,
2023, this Court issued a rule to show cause as to why the appeal should not
be quashed. Appellant responded that the date was a typographical error and
he intended to appeal from the sentence entered August 30, 2022.
Response, 1/25/23, at 2 (unnumbered). On January 27, 2023, we discharged
the rule. Given the obvious error, and in the interest of judicial economy, we
(Footnote Continued Next Page)
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Appellant presents one issue for our review:
I. Did the [trial] court err in accepting [Appellant’s] guilty plea
since the plea was not knowing and voluntarily entered
because [Appellant’s] oral guilty plea colloquy failed to
explain: (1) the right to confront and cross-examine
witnesses, (2) the fact that a jury’s verdict would need to
be unanimous, and (3) the defendant would be presumed
innocent unless the Commonwealth established the
elements of each crime beyond a reasonable doubt?
Appellant’s Brief at 3.
“It is well-settled that the decision whether to permit a defendant to
withdraw a guilty plea is within the sound discretion of the trial court.”
Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017). The term
discretion,
imports the exercise of judgment, wisdom and skill so as to reach
a dispassionate conclusion, and discretionary power can only exist
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judges. Discretion must
be exercised on the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary action. Discretion is
abused when the course pursued represents not merely an error
of judgment, but where the judgment is manifestly unreasonable
or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.
Commonwealth v. Kehr, 180 A.3d 754, 756-57 (Pa. Super. 2018) (citation
omitted).
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regard “as done what ought to have been done” and deem Appellant’s appeal
as taken from the August 30, 2022 judgment of sentence. See Zitney v.
Appalachian Timber Products, Inc., 72 A.3d 281, 285 (Pa. Super. 2013).
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There are different standards for reviewing requests to withdraw a guilty
plea before and after a sentence is imposed. Commonwealth v. Flick, 802
A.2d 620, 623 (Pa. Super. 2002). Pre-sentence, the court administers its
discretion liberally in favor of the accused, and “any demonstration by a
defendant of a fair-and-just reason will suffice to support a grant, unless
withdrawal would work substantial prejudice to the Commonwealth.”
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015). In
contrast,
post-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. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) (citations
omitted).
We presume when an appellant has entered a guilty plea that he was
aware of what he was doing; it is his burden to prove the plea was involuntary.
See Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001).
Where the record demonstrates the trial court conducted a guilty plea colloquy
and the appellant understood the nature of the charges against him, the plea
is voluntary. See id.A valid plea colloquy examines:
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1) the nature of the charges, 2) the factual basis for the plea, 3)
the right to a jury trial, 4) the presumption of innocence, 5) the
sentencing ranges, and 6) the plea court’s power to deviate from
any recommended sentence.
Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) (citation
omitted). This examination may be conducted by defense counsel or the
attorney for the Commonwealth, as permitted by the Court. See Pa.R.Crim.P.
590, Comment. Additionally, the examination may consist of both a “written
colloquy that is read, completed, signed by the defendant, and made part of
the record,” and an on-the-record oral examination. Id.Instantly, Appellant has waived his challenge to the oral plea colloquy.
We have explained:
In order to preserve an issue related to a guilty plea, an appellant
must either “object[ ] at the sentence colloquy or otherwise raise
[ ] the issue at the sentencing hearing or through a post-sentence
motion.” Commonwealth v. D’Collanfield, 805 A.2d 1244,
1246 (Pa. Super. 2002). See Pa.R.Crim.P. 720(A)(1),
(B)(1)(a)(i); see also Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on
appeal.”).
Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468–69 (Pa. Super.
2017).
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While Appellant filed a post-sentence motion to withdraw his plea, it was
a legal nullity because he filed the motion pro se while represented by counsel.
Thus, the trial court did not rule on the motion.4
Further, Appellant abandoned the claims in his motion to withdraw, and
argues on appeal that his “plea colloquy was defective in that it failed to
explain a jury verdict would need to be unanimous and that the
Commonwealth would bear the burden of proving each element of the charges
beyond a reasonable doubt.” Appellant’s Brief at 8. Appellant first raised the
adequacy of the colloquy in his Rule 1925(b) statement. See Monjaras-
Amaya, 163 A.3d at 468-69; see also Commonwealth v. Baez, 169 A.3d
35, 41 (Pa. Super. 2017) (finding waiver where appellant argued issues not
raised in his motion to withdraw guilty plea on appeal); Commonwealth v.
Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for first time
in Rule 1925(b) statement are waived); Pa.R.A.P. 302(a).
Waiver notwithstanding, Appellant would not be entitled to relief.
Appellant entered his plea after trial began and the first witness testified. The
record reflects Appellant was present for the trial court’s jury instructions,
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4 Appellant claimed his plea was the result of prosecutorial misconduct,
ineffective assistance of plea counsel, and judicial bias. Motion for Withdrawal
of Guilty Plea, 9/7/22, at 1-4 (unnumbered). Appellant never claimed the
colloquy was deficient. See id. Appellant first challenged the adequacy of
the colloquy in his Rule 1925(b) statement. See Concise Statement of Errors
Complained of on Appeal, 12/21/21, at 1 (unnumbered).
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including instructions on burden of proof. N.T. Trial, 8/30/22, at 38, 40.
Further, in his 10-page written colloquy, Appellant agreed he understood that
“all 12 people on your jury must agree on your guilt beyond a reasonable
doubt, before you can be convicted of the crime or crimes with which you were
charged[.]” Written Guilty Plea, 8/30/22, at 3. Appellant also acknowledged
he understood “the Commonwealth must prove your guilt beyond a reasonable
doubt before you can be convicted of the crime(s) charged[.]” Id.During Appellant’s oral colloquy, he confirmed defense counsel read him
“every question or statement” in the written colloquy. N.T. Guilty Plea,
8/30/22, at 5. Appellant confirmed that he initialed the bottom of each page.
Id. When asked if he “fully understood what we’re doing here with this plea,”
Appellant answered, “Yes.” Id. at 6. Appellant stated he understood he had
a “full right to continue with [the jury] trial, complete the trial, and allow the
jury to decide[] whether or not you’re guilty of the any of the crimes you’re
charged with[.]” Id. Appellant acknowledged it was his choice to plead guilty,
he had sufficient time to discuss the plea with counsel, he had no questions,
and he was making the decision freely. Id. at 7. Appellant replied in the
affirmative when the trial court asked if “the same question were asked of you
under oath as you answered before, would your answers be the same?” Id.
at 8.
Rule 590 does not require that an oral colloquy repeat all information in
the written colloquy. See Pa.R.Crim.P. 590, Comment. Upon review, we
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agree with the trial court that Appellant’s “responses to the written and oral
guilty plea colloquies help establish that [Appellant] had a full understanding
of the nature and consequences of his guilty plea.” Trial Court Opinion,
1/6/23, at 5; see also Morrison, 878 A.2d at 107; Commonwealth v.
Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc) (“The law does not
require that appellant be pleased with the outcome of his decision to enter a
plea of guilty: All that is required is that [appellant’s] decision to plead guilty
be knowingly, voluntarily and intelligently made.”). In the absence of waiver,
Appellant would not be entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2023
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