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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
WALTER D. MATTHEWS, :
:
Appellant : No. 1977 WDA 2013
Appeal from the Judgment of Sentence September 18, 2012,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0001726-2012
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 10, 2014
Walter D. Matthews (“Matthews”) appeals from the judgment of
sentence entered on September 18, 2012 in the Court of Common Pleas of
Allegheny County, Criminal Division, following his guilty plea to one count of
receiving stolen property.1 We affirm.
Because Matthews challenges the validity of his guilty plea, a recitation
of the facts underlying his conviction is unnecessary. The relevant
procedural history of this case is as follows. On June 19, 2012, Matthews
pled guilty to one count of receiving stolen property. On that date, the trial
court deferred sentencing so that it could obtain a pre-sentence report. On
August 30, 2012, Matthews arrived late for his sentencing hearing.
Matthews received a drug screen and tested positive for cocaine. The trial
1
18 Pa.C.S.A. § 3925(a).
*Former Justice specially assigned to the Superior Court.
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court revoked his bond and sent him to the Allegheny County Jail, delaying
his sentencing until September 2012. On September 18, 2012, the trial
court sentenced Matthews to 15 to 60 months of incarceration.
On September 25, 2012, Matthews filed a post-sentence motion to
withdraw his guilty plea. On January 16, 2013, Matthews filed an amended
motion to withdraw guilty plea, which the trial court denied on January 18,
2013. Matthews filed no notice of appeal from the September 18, 2012
judgment of sentence.
On February 1, 2013, Matthews filed, pro se, a petition pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. On February
7, 2013, the trial court appointed counsel to represent Matthews and
afforded counsel time to file an amended PCRA petition. On July 2, 2013,2
Matthews filed an amended PCRA petition in which he claimed that counsel
was ineffective for failing to object to a sentence not in compliance with a
plea agreement and for failing to preserve his appellate rights. Amended
PCRA Petition, 7/2/13, ¶¶ 10-11. On July 9, 2013, the trial court entered an
order reinstating Matthews’s post-sentence and appellate rights.
On July 18, 2013, Matthews filed another post-sentence motion
seeking permission to withdraw his guilty plea, which the trial court denied
on November 14, 2013. On December 13, 2013, Matthews filed a notice of
2
The trial court granted Matthews three extensions, on March 27, 2013,
May 7, 2013, and June 13, 2013, to file an amended PCRA petition.
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appeal. On December 17, 2013, the trial court ordered Matthews to file a
concise statement of the errors complained of on appeal pursuant to Rule
1925(b) of the Pennsylvania Rules of Appellate Procedure. On January 6,
2014, Matthews filed a timely Rule 1925(b) statement.
On appeal, Matthews raises the following issues for review:
1. Were the circumstances surrounding the entry of
[Matthews]’s plea ambiguous or confusing enough to
render [his] plea unknowing and/or involuntary
where [Matthews] was either 1) led to believe that
he would receive a sentence of probation if he
tendered a plea of guilty and began to make
restitution payments prior to August 30, 2012, the
originally scheduled date of sentencing, or 2),
suffered legitimate confusion as to the existence of
such a promise?
2. Did the sentencing court err in failing to provide
[Matthews] an opportunity to withdraw his plea pre-
sentence when the court became disinclined to
sentence [him] in accordance with an understanding
created when [he] withdrew his request for a jury
trial and instead entered a plea of guilty[?]
Matthews’s Brief at 3.
Our Court has held that “[t]here is no absolute right to withdraw a
guilty plea, and the decision as to whether to allow a defendant to do so is a
matter within the sound discretion of the trial court.” Commonwealth v.
Pollard, 832 A.2d 517, 522 (Pa. Super. 2003). “A trial court’s decision
regarding whether to permit a guilty plea to be withdrawn should not be
upset absent an abuse of discretion.” Commonwealth v. Pardo, 35 A.3d
1222, 1227 (Pa. Super. 2011). “[P]ost-sentence motions for withdrawal are
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subject to higher scrutiny since courts strive to discourage entry of guilty
pleas as sentence-testing devices.” Commonwealth v. Broaden, 980 A.2d
124, 129 (Pa. Super. 2009) (quotations omitted). Importantly, “a defendant
who attempts to withdraw a guilty plea after sentencing must demonstrate
prejudice on the order of manifest injustice before withdrawal is justified.”
Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013), appeal
denied, 87 A.3d 319 (Pa. 2014). Our Court has held that “[a] plea rises to
the level of manifest injustice when it is entered into involuntarily,
unknowingly, or unintelligently.” Id. (quoting Commonwealth v.
Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002)).
Prior to accepting a guilty plea, a trial court must determine on the
record whether it is voluntarily, knowingly, and intelligently tendered. See
Pa.R.Crim.P. 590(a)(3). In order to ensure a voluntary, knowing, and
intelligent plea, our Supreme Court requires that a trial court, at a minimum,
ask the following questions during a plea colloquy:
1) Does the defendant understand the nature of
the charges to which he is pleading guilty?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he has the
right to a trial by jury?
4) Does the defendant understand that he is
presumed innocent until he is found guilty?
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5) Is the defendant aware of the permissible
ranges of sentences and/or fines for the
offenses charged?
6) Is the defendant aware that the judge is not
bound by the terms of any plea agreement
tendered unless the judge accepts such
agreement?
Commonwealth v. Moser, 921 A.2d 526, 529 (Pa. Super. 2007).
Additionally, “the examination does not have to be solely oral. Nothing
precludes the use of a written colloquy that is read, completed, and signed
by the defendant, made part of the record, and supplemented by some on-
the-record oral examination.” Id. “Our law presumes that a defendant who
enters a guilty plea was aware of what he was doing,” and “[h]e bears the
burden of proving otherwise.” Pollard, 832 A.2d at 523 (citation omitted).
In assessing the adequacy of a guilty plea colloquy and the voluntariness of
the subsequent plea, “the court must examine the totality of circumstances
surrounding the plea.” Broaden, 980 A.2d at 129.
For his first issue on appeal, Matthews argues that he did not
voluntarily, knowingly, and intelligently tender his guilty plea. Matthews
Brief at 7-12. Matthews claims that there was an off-the-record agreement
in place where he would receive a sentence of time served and probation in
exchange for his guilty plea. Id. Matthews refers to the following events in
support of his assertion that there was an off-the-record plea agreement.
First, at the plea hearing, Matthews initially requested a jury trial, but
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following an off-the-record conversation with his attorney, decided to plead
guilty. Id. at 8. Matthews contends that “it stands to reason … that
something was said to [him] off-the-record to prompt the change of mind.”
Id. Second, at the plea hearing, there was a lengthy discussion involving
Matthews’s concern that he would not be allowed to live at the St. Joseph
House of Hospitality (“St. Joseph House”) if he had an ankle bracelet. Id. at
9. The trial court also told Matthews that it wanted him to provide proof that
he was abiding by the rules of that facility, that he was compliant with his
parole agent, and that he had begun paying restitution. Id. Matthews
argues that this discussion would have been unnecessary if there had been
no agreement in place maintaining Matthews’s current living arrangements.
Id. Third, at the sentencing hearing, Matthews’s attorney made remarks to
the effect that Matthews had received a plea offer for time served and
probation. Id. at 9-11. Based on these events, Matthews maintains that he
received an off-the-record plea offer for a sentence of time served and
probation, or in the alternative, the circumstances demonstrate too much
confusion on his part for him to have tendered a voluntary, knowing, and
intelligent guilty plea. Id. at 7-12.
We conclude that the trial court did not err in finding that Matthews
voluntarily, knowingly, and intelligently tendered his guilty plea. During the
guilty plea colloquy, the trial confirmed with Matthews that he understood
the nature of the charges to which he was pleading guilty, that there was a
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factual basis for the plea, and that Matthews was aware of the permissible
ranges of sentences and/or fines for the offense charged. N.T., 6/19/12, at
7-8. Additionally, in the written colloquy, Matthews indicated that he
understood that he had the right to a trial by jury, that he was innocent until
proven guilty, and that the judge was not bound by the terms of any plea
agreement tendered unless the judge accepted such an agreement. Guilty
Plea Explanation of Defendant’s Rights, 6/19/12, ¶¶ 9, 17, 58. “A person
who elects to plead guilty is bound by the statements he makes in open
court while under oath and he may not later assert grounds for withdrawing
the plea which contradict the statements he made at his plea colloquy.”
Pollard, 832 A.2d at 523. Thus, the record supports the trial court’s
conclusion that Matthews voluntarily, knowingly, and intelligently tendered
his guilty plea. See Moser, 921 A.2d at 529.
Moreover, our review of the certified record on appeal reveals no
support for Matthews’s claims that he received an off-the-record plea
agreement for a sentence of time served and probation. During the oral
colloquy, Matthews stated that no promises had been made to him in
connection with his guilty plea. N.T., 6/19/12, at 6. In the written colloquy,
Matthews specifically answered “no” to the question of whether there was a
plea bargain in this case. Guilty Plea Explanation of Defendant’s Rights,
6/19/12, ¶ 60.
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Furthermore, although Matthews did initially request a jury trial and
shortly thereafter decide to plead guilty, there is no indication in the plea
hearing transcripts that there was an off-the-record plea offer made
prompting him to plead guilty. See N.T., 6/19/12, at 2-4. Because we do
not know what Matthews’s attorney said to him during the off-the-record
discussion prior to his decision to plead guilty, we cannot say what prompted
this course of action. Likewise, while there was a discussion during the plea
hearing regarding the St. Joseph House, restitution, and Matthews’s
compliance with parole, there is no evidence in the plea hearing transcripts
that this conversation occurred because there was an off-the-record plea
agreement in which Matthews would receive a sentence of time served and
probation. See id. at 9-15.
Additionally, we do not find the above-referenced exchange from
Matthews’s sentencing hearing to indicate that a plea agreement existed in
this case. This exchange occurred as follows:
[Defense Counsel]: Your Honor, he was offered time
served and probation.
The Court: Well, he chose not to accept that.
[Defense Counsel]: No, on August 30th. I know it’s
very confusing because he’s been in front of you so
many times. Obviously and justifiably the court was
not happy with him coming in on August 30th for his
sentence and being high on -- well, if you have
cocaine in your system -- excuse my terminology Mr.
Matthews, but that’s not exactly being clearheaded,
right?
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[Matthews]: I was clearheaded.
The Court: Was there a plea agreement? Was that
the case?
[Defense Counsel]: For time served and probation it
was.
The Court: Because I have a note here that there
was a plea and we did order a pre-sentence report.
[The Prosecutor]: Unfortunately, Your Honor, I was
not here for the plea. I’m filling in for my partner. He
indicated to me that this was a general plea.
The Court: This was a general plea, it was noted
here -- I’m speaking now Mr. Matthews – it was
noted here that he had a five prior record score, was
living at Saint Joe’s on parole and giving clean
screens. He had a three in the mitigated range, but I
ordered a pre-sentence report so [defense counsel]
could argue for me to depart from that and for him
to attempt to make some restitution in order for me
to consider a below mitigated range sentence.
[Defense Counsel]: Your Honor --
The Court: Unfortunately, there was no plea
agreement in this case and his behavior since that
time, in fact, convinced me that the mitigated range
sentence is not appropriate, that a sentence in the
aggravated range would be more appropriate.
* * *
[Defense Counsel]: Your Honor, for the matter -- for
the record, on June 19th of 2012, when the plea was
taken, the Court’s notes are absolutely correct, Mr.
Matthews signed my file, but I had asked for a pre-
sentence report so that we had additional time,
everything you said is correct, and that as noted on
my file request time served and probation. Mr.
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Matthews signed that back on June 19th, and to pay
off the restitution as much as he could to show a
good-faith effort. When he came in on August 30th
for sentencing, we had the problem then of being
late for court. He was urine screened. He tested
positive. So the Judge is correct.
N.T., 9/18/12, at 11-14.
Matthews asserts that because both he and his attorney attempted to
interject while the Judge was speaking, this exchange is proof that they
believed a plea agreement was in place. Matthews’s Brief at 10. Matthews
also claims that his attorney’s confirmation of the trial court’s understanding
of the circumstances surrounding his guilty plea is incorrect because his
attorney did not request a pre-sentence report, as she claims, but rather the
trial court ordered the report. Id. at 11; N.T., 6/19/12, at 9-14. At most,
this passage establishes that defense counsel was going to request time
served and probation after the completion of a pre-sentence report. It does
not support his contention that he received an off-the-record plea agreement
prompting him to plead guilty.
For his next issue on appeal, Matthews claims that the trial court erred
when it did not provide an opportunity to withdraw his guilty plea pre-
sentence when it decided not to sentence him in accordance with an off-the-
record plea deal that he agreed to prior to pleading guilty. Matthews’s Brief
at 13-14. Matthews cites Commonwealth v. Porreca, 595 A.2d 23 (Pa.
1991) for the proposition that when a “court is unwilling to accept an
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agreement reached by the defendant and the Commonwealth[,] the
defendant should be given the opportunity to withdraw the plea before
sentence is imposed.” Matthews’s Brief at 13. However, our Supreme Court
in Porreca held that
when a written plea agreement includes specific
language that the defendant knowingly waives his
right to withdraw his plea if the trial judge should not
concur in the recommended sentence, the defendant
is not entitled to withdraw his plea; but if a plea
agreement is silent on whether the defendant may
withdraw the plea in the event that the trial court
does not concur in the recommended sentence, the
defendant shall be entitled to withdraw his plea[.]
Porreca, 595 A.2d at 26. Because we have already determined that there
is no evidence of record to support Matthews’s assertion that there was an
off-the-record plea agreement in this case, Porreca does not apply here.
Accordingly, Matthews is not entitled to any relief on this issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2014
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