J-S56038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL TODD TRUMBORE,
Appellant No. 109 MDA 2014
Appeal from the Judgment of Sentence December 2, 2013
in the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0003123-2011
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL TODD TRUMBORE,
Appellant No. 110 MDA 2014
Appeal from the Judgment of Sentence December 2, 2013
in the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0003124-2011
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL TODD TRUMBORE,
Appellant No. 111 MDA 2014
J-S56038-14
Appeal from the Judgment of Sentence December 2, 2013
in the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0003158-2011
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL TODD TRUMBORE,
Appellant No. 112 MDA 2014
Appeal from the Judgment of Sentence December 2, 2013
in the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0003199-2011
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL TODD TRUMBORE,
Appellant No. 113 MDA 2014
Appeal from the Judgment of Sentence December 2, 2013
in the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0004029-2011
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BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 27, 2014
Appellant, Michael Trumbore, appeals from the judgment of sentence
entered after his open guilty plea to robbery, and his negotiated guilty pleas
to fleeing and eluding a police officer, theft by deception, and two counts of
theft by unlawful taking.1 Specifically, Appellant argues that the trial court
erred in denying his post-sentence motion to withdraw his guilty pleas,
challenges the discretionary aspects of his sentence, and claims ineffective
assistance of plea counsel. We affirm.
On June 8, 2011, Appellant robbed a bank after giving the teller a note
demanding money and advising he had a gun. On June 28 and July 14,
2011, Appellant stole vehicles from two different car dealerships. Between
July 13 and 16, 2011, Appellant took brass cemetery vases or urns from a
local cemetery. On July 18, 2011, officers attempted to stop Appellant in a
vehicle because of outstanding warrants for his arrest. Appellant fled,
making illegal passes, running red lights, and travelling at a high rate of
speed, which resulted in him crashing into a sign. Officers apprehended him
when he attempted to flee on foot.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3701(a)(1)(ii), 75 Pa. C.S.A. § 3733(a), and 18 Pa.C.S.A.
§§ 3922(a)(1), and 3921(a), respectively.
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The Commonwealth charged Appellant with the above crimes at five
different docket numbers. On September 10, 2012, Appellant entered an
open guilty plea to the charge of robbery for his June 8, 2011 bank theft.
On November 7, 2012, Appellant entered negotiated pleas to the remaining
charges resulting from his actions between June 28 and July 18, 2011, and,
the same day, the trial court sentenced Appellant to not less than eight nor
more than twenty years’ incarceration on the robbery charge, with the
remaining sentences to run concurrently.
Appellant timely filed a post-sentence motion on November 19, 2012,
which the court denied the same day.2 On December 17, 2012, Appellant
timely appealed, alleging, in pertinent part, that the court erred in denying
him his right of allocution pursuant to Pennsylvania Rule of Criminal
Procedure 704. The Commonwealth and the trial court agreed with
Appellant. On August 27, 2013, a panel of this Court vacated the trial
court’s November 7, 2012 judgment of sentence and remanded for re-
sentencing as requested by the parties and the trial court.
On December 2, 2013, the court held a re-sentencing hearing, with
Appellant appearing via teleconference. The court provided Appellant with
his right of allocution, and again sentenced him to an aggregate term of not
less than eight nor more than twenty years’ incarceration. On December 11,
____________________________________________
2
November 17, 2012 fell on a Saturday.
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2013, Appellant filed a post-sentence motion requesting to withdraw his
guilty pleas because he had not received a psychiatric evaluation prior to
entering them. On December 17, 2013, the court denied Appellant’s motion
without a hearing. Appellant timely appealed on January 14, 2014.3
Current conflict counsel was assigned after the court granted Appellant’s
petition to remove his plea counsel. On February 7, 2014, this Court
consolidated Appellant’s five cases for purposes of appeal.
Appellant raises three issues for this Court’s review:
A. Whether the [c]ourt sanctioned a manifest injustice when
it denied [Appellant’s] motion to Withdraw his Guilty Plea after
[Appellant] was deemed to meet the M’Naghten[4] Standard in
another Pennsylvania County for charges that occurred in the
same time period(s) of the charges for which it was sentencing
____________________________________________
3
Appellant filed a timely Rule 1925(b) statement of errors pursuant to the
court’s order on February 28, 2014. The court filed an opinion on March 18,
2014. See Pa.R.A.P. 1925.
4
Under the M’Naghten Rule:
. . . to establish a defense on the ground of insanity, it must be
clearly proved that, at the time of committing the act, the party
accused was [laboring] under such a defect of reason, from the
disease of the mind, as not to know the nature and quality of the
act he was doing, or if he did know it that he did not know he
was doing what was wrong.
Commonwealth v. Woodhouse, 401 Pa. 242, 249-52, 164
A.2d 98, 103 (1960) (quoting M’Naghten’s Case, 10 Cl. & Fin.
200, 8 Eng.Rep. 718 (1873).
Commonwealth v. Parsons, 969 A.2d 1259, 1263 n.3 (Pa. Super. 2009)
(en banc), appeal denied, 982 A.2d 1228 (Pa. 2009).
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[Appellant] and Berks County trial counsel had not investigated
and/or fully explained to the court those findings and the
significance of [Appellant’s] mental health status as a defense or
mitigating circumstance to justify less than an aggravated range
minimum with a statutory limit maximum?
B. Whether the sentence imposed in this matter is excessive
and was an abuse of discretion which did not take into account
the mitigating circumstances regarding his mental health issues?
C. Whether [trial counsel] rendered ineffective assistance of
counsel in the timing of his motion to withdraw guilty plea, for
failing to investigate and present a mental health defense and/or
using the mental health issue of [Appellant] as a mitigating
circumstance to justify a lesser sentence?
(Appellant’s Brief, at 8).
In Appellant’s first issue, he challenges the trial court’s denial of his
post-sentence motion to withdraw his September 10 and November 7, 2012
guilty pleas. (See id. at 14-16). Specifically, Appellant argues that the
pleas “were not knowing, intelligent and voluntary . . . because of his
significant mental health history” and that the court “abused its discretion
[in failing] to withdraw the plea[s] and investigate his mental health issues
in any manner.” (Id. at 14). Appellant’s claim lacks merit.
“[A] defendant who attempts to withdraw a guilty plea after
sentencing must demonstrate prejudice on the order of manifest injustice
before withdrawal is justified. A showing of manifest injustice may be
established if the plea was entered into involuntarily, unknowingly, or
unintelligently.” Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa.
Super. 2011) (citations and internal quotation marks omitted).
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Further,
[i]n order for a guilty plea to be
constitutionally valid, the guilty plea colloquy must
affirmatively show that the defendant understood
what the plea connoted and its consequences. This
determination is to be made by examining the
totality of the circumstances surrounding the entry of
the plea. [A] plea of guilty will not be deemed
invalid if the circumstances surrounding the entry of
the plea disclose that the defendant had a full
understanding of the nature and consequences of his
plea and that he knowingly and voluntarily decided
to enter the plea.
Our law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden of proving
otherwise. [Commonwealth v.] Pollard, 832 A.2d [517,] 523
[(Pa. Super. 2003)] (citations omitted). “[W]here the record
clearly demonstrates that a guilty plea colloquy was conducted,
during which it became evident that the defendant understood
the nature of the charges against him, the voluntariness of the
plea is established.” Commonwealth v. McCauley, 797 A.2d
920, 922 (Pa. Super. 2001) [(citation omitted)].
Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006).
Therefore, “[a] defendant is bound by the statements he makes during his
plea colloquy, and may not assert grounds for withdrawing the plea that
contradict statements made when he pled.” McCauley, supra at 922
(citation omitted).
Here, in his written open guilty plea statement for the charge of
robbery, Appellant stated that he did not suffer from any mental illness at
the time of entering his plea, although he previously had suffered from
“organic mental syndrome.” (Guilty Plea Statement, 9/10/12, at 2 ¶¶ 8, 9).
Appellant further stated that he was aware that he was giving up his right to
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a jury trial, that by pleading guilty he gave up his right to file pre-trial
motions, and that he understood the nature of the charges to which he was
pleading guilty. (See id. at ¶¶ 11-14). Appellant stated that he was
pleading guilty of his own free will, that he understood the maximum
possible sentence for the robbery charge, that he had limited appellate
rights, and that he was satisfied with counsel’s assistance. (See id. at 3 ¶¶
15, 18-20).
At the September 10, 2012 hearing, the court confirmed that all of the
answers in the written statement were true and correct, that Appellant had
the opportunity to speak with his attorney about the case and that he was
satisfied with counsel’s representation, that he had not taken any medication
in the previous forty-eight hours, and that he knew what he was doing and
what his maximum possible sentence could be. (See N.T. Guilty Plea
Hearing, 9/10/12, at 2-4). The Commonwealth explained the robbery
charge against Appellant, and the facts it would have to prove at trial. (See
id. at 5-6). Appellant admitted to committing the robbery in the manner
detailed by the Commonwealth. (See id. at 6).
At the November 7, 2012 plea and sentencing hearing on Appellant’s
negotiated guilty pleas to fleeing and eluding a police officer, theft by
deception, and two counts of theft by unlawful taking, the following
exchange occurred:
THE COURT: In the last 48 hours, have you had any kind of
medication, drugs, or alcohol?
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[APPELLANT]: No.
THE COURT: Have you had the opportunity to speak with your
attorney . . . ?
[APPELLANT]: Yes.
THE COURT: Are you satisfied with the services provided to you
by [counsel]?
[APPELLANT]: Yes.
THE COURT: Have you had any medication in the last 48 hours
related to the diagnosis of . . . organic mental syndrome[?]
* * *
THE COURT: . . . Okay, so when did you last, if ever, have any
medication for organic mental syndrome?
[APPELLANT]: I believe it was around 19─ I’m going to say
1992.
THE COURT: Was it medication you took?
[APPELLANT]: Yes.
THE COURT: You stopped taking it?
[APPELLANT]: Yes.
THE COURT: Why?
[APPELLANT]: Because I felt I didn’t need it.
THE COURT: Okay. So since you’ve been at Berks County
Prison, has any psychiatrist said you needed medication?
[APPELLANT]: I haven’t seen any.
THE COURT: So then you’re in a regular cell block?
[APPELLANT]: Yes.
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(N.T. Guilty Plea and Sentencing, 11/07/12, at 10-11).
In his written negotiated plea statements, the forty-four year old
Appellant wrote that he was diagnosed with organic mental syndrome when
he was six years of age, but that he did not suffer from any mental illness at
the time of the guilty plea. (See Guilty Plea Statements, Theft by
Deception, Theft by Unlawful Taking, Fleeing and Eluding a Police Officer,
11/07/12, at 2 ¶¶ 8, 9). Also in the written pleas, Appellant further stated
that he was aware that he was giving up his right to a jury trial, that by
pleading guilty he gave up his right to file pre-trial motions, and that he
understood the nature of the charges to which he was pleading guilty. (See
id. at ¶¶ 11-14). Appellant stated that he was pleading guilty of his own
free will, that he understood the maximum possible sentences, that he had
limited appellate rights, and that he was satisfied with counsel’s assistance.
(See id. at 3 ¶¶ 15, 18-20).
Finally, at the November 7, 2012 guilty plea hearing and sentencing,
Appellant agreed that all of his statements in the written guilty plea
colloquies were “true and correct,” and that he understood that his
sentences for each crime of not less than three nor more than six years’
incarceration were to run concurrently with the robbery sentence. (N.T.
Guilty Plea and Sentencing, 11/07/12, at 10; see also id. at 12). Appellant
admitted that he committed the crimes to which he was pleading guilty as
described in detail by the Commonwealth. (See id. at 15-20).
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Accordingly, based on the foregoing, Appellant’s argument that he did
not enter into a knowing and voluntary plea because he was suffering from a
mental illness at the time of his guilty pleas lacks merit. (See Appellant’s
Brief, at 14-16). There is absolutely no evidence5 that Appellant lacked the
“ability to comprehend his position as one accused of [a crime] and to
cooperate with his counsel in making a rational defense.” Shaffer, supra at
680 (citation omitted). Therefore, we conclude that the court did not abuse
its discretion in denying Appellant’s motion to withdraw his guilty pleas.
Appellant’s first issue lacks merit.
In Appellant’s second issue, he challenges the discretionary aspects of
his sentence. (See Appellant’s Brief, at 16-19). Specifically, Appellant
asserts that “[t]he sentence imposed was excessive and an abuse of
____________________________________________
5
Appellant attached a psychiatric evaluation report to his brief in support of
this appeal. However, it is well-settled that this Court is prohibited from
reviewing items that are not part of the certified record. See
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008), appeal
denied, 972 A.2d 521 (Pa. 2009) (Observing that “[t]his Court does not rely
on items dehors the record[.]”) (citation omitted). Accordingly, we will not
consider this document.
Additionally, we note that Appellant’s undeveloped argument that his
pleas were involuntary because he “was deemed to meet the M’Naghten
Standard in another Pennsylvania County,” (Appellant’s Brief, at 8; see id.
at 16), is legally unpersuasive. See Commonwealth v. Shaffer, 449 A.2d
677, 680 (Pa. Super. 1982) (stating that “[t]he test to be applied in
determining the legal sufficiency of [a defendant’s] mental capacity to . . .
enter a plea at the time involved, is not the M’Naghten “right or wrong”
test, but rather his ability to comprehend his position as one accused of [a
crime] and to cooperate with his counsel in making a rational defense.”)
(citation, emphasis, and internal quotation marks omitted).
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discretion based on the failure to properly consider [his] psychiatric history.”
(Id. at 16). This issue is waived.
Pennsylvania Rule of Appellate Procedure 2119 provides, in pertinent
part:
An appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in a separate
section of the brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary
aspects of a sentence. The statement shall immediately
precede the argument on the merits with respect to the
discretionary aspects of the sentence.
Pa.R.A.P. 2119(f) (emphasis added); see also Commonwealth v. Bruce,
916 A.2d 657, 666 (Pa. Super. 2007), appeal denied, 932 A.2d 74 (Pa.
2007) (same).
Here, Appellant has failed to include a Rule 2119(f) statement in his
brief. (See Appellant’s Brief, at 1-20). “A failure to include the Rule 2119(f)
statement does not automatically waive an appellant’s argument; however,
we are precluded from reaching the merits of the claim when the
Commonwealth lodges an objection to the omission of the statement.”
Bruce, supra at 666. In its brief, the Commonwealth objects to Appellant’s
omission of the statement, stating that this Court “may not review the
sentencing issue raised, as [Appellant] has not sought permission for review
of his sentence.” (Commonwealth’s Brief, at 9; see id. at 7-9).
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We agree with the Commonwealth that, because it has objected, we
are precluded from reaching the merits of Appellant’s claim. Therefore, we
deem it waived. See Bruce, supra at 666.
In Appellant’s third issue, he alleges the ineffectiveness of counsel, but
acknowledges that this issue is not properly before us on direct appeal.
(See Appellant’s Brief, at 19-20). We dismiss Appellant’s claim without
prejudice to him to raise it on collateral review. See See Commonwealth
v. Thomas, 54 A.3d 332, 344 (Pa. 2012), cert. denied, 134 S. Ct. 173
(2013) (applying the holding of Commonwealth v. Grant, 813 A.2d 726,
738 (Pa. 2002), that “a petitioner should wait to raise claims of ineffective
assistance of trial counsel until collateral review.”) (footnote omitted).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2014
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