Com. v. Bentley, D.

J-S25027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DUPREE BENTLEY :
:
Appellant : No. 21 EDA 2023
Appeal from the Judgment of Sentence Entered July 15, 2022
In the Court of Common Pleas of Montgomery County
Criminal Division at CP-46-CR-0001567-2021
BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 16, 2023
Dupree Bentley (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to one count each of robbery, attempted robbery
of a motor vehicle, and persons not to possess a firearm.1 We affirm.
The trial court summarized the following case history:
[Appellant] admitted as part of [his] open plea that on January
22, 2021, while in the Norristown, Montgomery County, home of
Austin Lindsey, he pointed a firearm at Lindsey and stole Lindsey’s
cell phone and Xbox gaming system. (N.T., 4/12/22, pp. 18-19).
[Appellant] asked where Lindsey’s wallet and credit cards were[,]
and Lindsey responded that they were in Lindsey’s vehicle. Id. at
19. [Appellant] left the residence, driving off in Lindsey’s vehicle,
and eventually led police on a chase through Bridgeport and
Conshohocken. Id. He crashed the vehicle while driving on 1-76,
ran from the vehicle into traffic[,] and forcibly attempted to take
control of another vehicle on the highway before being
apprehended. Id.
____________________________________________
1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 901(a), and 6105(a)(1).
J-S25027-23
[The trial] court subsequently sentenced [Appellant] to 6 -
12 years in prison for robbery, a consecutive 3 - 6 years in prison
for the firearms offense[,] and a concurrent 2 - 4 years in prison
for the attempted robbery of a motor vehicle. [Appellant,]
through plea counsel, filed a timely post-sentence motion
requesting that the sentence imposed for the firearms offense be
set to run concurrently rather than consecutively. [The trial] court
denied the motion on November 17, 2022.
Trial Court Opinion, 3/15/23, at 1-2 (footnotes omitted).
Appellant timely appealed. After a brief delay caused by a change of
counsel, Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents a single issue for review:
Did the [trial] court err in accepting [Appellant’s] guilty plea since
the plea was not knowingly and voluntarily entered because
[Appellant] was informed at the time of his plea that the court
would apply a sentencing guideline range of 40 - 60 months +/-
12 [months] for count 1: robbery, when, in fact, at sentencing the
court applied a deadly weapon[s enhancement] range of 66 - 70
months +/- 12 [months] for count 1: robbery?
Appellant’s Brief at 3 (capitalization altered).
“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
-2-
J-S25027-23
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).
There are different standards for reviewing requests to withdraw a guilty
plea before and after sentencing. Commonwealth v. Flick, 802 A.2d 620,
623 (Pa. Super. 2002). Pre-sentence, the trial 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 a defendant has entered a guilty plea, 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
-3-
J-S25027-23
and the defendant understood the nature of the charges against him, the plea
is voluntary. See id.A valid plea colloquy examines:
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).
Here, the record reflects that Appellant waived his claim that his plea
was not voluntary. We have explained:
[T]o 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).
The transcript of the sentencing hearing reveals Appellant did not seek
to withdraw or otherwise challenge his guilty plea. See N.T., 7/15/22, at 1-
26. Appellant subsequently filed a post-sentence motion, but did not seek to
withdraw his guilty plea; he requested only that the trial court reconsider his
sentence. See Motion to Reconsider Sentence, 7/20/22, at 1-2
(unnumbered). Appellant first claimed his plea was involuntary in his Rule
-4-
J-S25027-23
1925(b) statement. See Concise Statement of Errors Complained of on
Appeal, 3/8/23, at 1 (unnumbered).
Appellant argues his plea was unknowing and involuntary because he
was not “informed at the time of his plea that the court would apply … a deadly
weapon [enhancement].” Appellant’s Brief at 4. Because Appellant first raised
this claim in his Rule 1925(b) statement, it is waived. See Monjaras-Amaya,
163 A.3d at 468-69; see also Commonwealth v. Lincoln, 72 A.3d 606,
609-10 (Pa. Super. 2013) (“A defendant wishing to challenge the
voluntariness of a guilty plea … must either object during the plea colloquy or
file a motion to withdraw the plea within ten days of sentencing. Failure to
employ either measure results in waiver.” (citations omitted));
Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues
raised for first time in a Rule 1925(b) statement are waived); Pa.R.A.P.
302(a); Pa.R.Crim.P. 720(B)(1)(a)(i).
In the absence of waiver, the claim would not merit relief. Appellant’s
oral and written colloquies met the standards set forth in Morrison. See N.T.,
4/12/22, at 3-20; Written Guilty Plea Colloquy, 4/11/22, at 1-10; see also
Morrison, 878 A.2d at 107.
At sentencing, the trial court addressed the application of the deadly
weapon enhancement, stating that it was “based upon the facts that were
established by the factual basis of the plea, that a firearm was used[.]” N.T.,
7/15/22, at 14. Appellant did not object. Id. at 15. Also, in his post-sentence
-5-
J-S25027-23
motion, Appellant conceded “the parties agreed that the applicable guidelines
range for sentencing” included the deadly weapon enhancement. Motion to
Reconsider Sentence, 7/20/22, at 2 (unnumbered).
The sentencing court “has no discretion to refuse to apply the deadly
weapon enhancement when it is appropriate.” Commonwealth v. Solomon,
151 A.3d 672, 677 (Pa. Super. 2016) (citation omitted). In Commonwealth
v. Septak, 518 A.2d 1284 (Pa. Super. 1986), the trial court refused to apply
the deadly weapon enhancement after finding that the Commonwealth had
failed to adequately notify the defendant of its application. Id. at 1286-87.
This Court found that the trial court erred. We stated:
We know of no case law that requires that a defendant be advised
of the specific Sentencing Guidelines which are applicable to his
case prior to the court’s acceptance of his guilty plea nor is such
notice specifically required by statute.
Id. at 1287. See also Commonwealth v. Pokorny, 520 A.2d 511, 512 (Pa.
Super. 1987) (vacating and remanding for resentencing where the trial court
refused to apply the deadly weapon enhancement based on the
Commonwealth’s failure during the plea colloquy to state it was seeking the
enhancement).
Recently, in Commonwealth v . Midgley, 289 A.3d 1111 (Pa. Super.
2023), the appellant claimed his plea was unknowing and involuntary because
counsel failed to inform him that the sentencing court would apply the deadly
weapon enhancement. Midgley, 289 A.3d at 1118. We rejected appellant’s
claim, observing that he had
-6-
J-S25027-23
demonstrated his understanding during the plea colloquy that
there was no agreement as to sentencing and that his maximum
total sentencing exposure was nine years. Because the court
imposed an aggregate sentence of four and a half to nine years,
we cannot say that his plea was unknowing or involuntary.
Id. at 1120.
Similarly, the record in this case, including Appellant’s responses in his
written and oral plea colloquies, establishes Appellant’s understanding of the
nature and consequences of his guilty plea. For example, Appellant
acknowledged he faced a possible maximum sentence of 60 years in prison.
N.T., 4/12/22, at 6; see also Written Guilty Plea Colloquy, 4/11/22, at 4;
Addendum to Guilty Plea Colloquy, 4/22/22, at 10. Appellant also confirmed
that there was no agreement regarding his sentence, which would be
determined by the trial court. Id. at 15. Under these circumstances,
Appellant cannot show that his plea was involuntary. Midgley, supra at
1120; see also Septak, supra at 1286-87. In the absence of waiver,
Appellant would not be entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2023
-7-
J-S25027-23
-8-