J. S09012/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAYRON RAYMOND DUDLEY, : No. 700 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, March 27, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0012381-2013
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 24, 2015
Jayron Raymond Dudley appeals from the judgment of sentence of
March 27, 2014, following his convictions of one count each of possessing a
firearm with manufacturer number altered, carrying a firearm without a
license, persons not to possess/use firearms, tampering with physical
evidence, false identification, and criminal mischief. We affirm the
convictions, but vacate the sentence for false identification.
On March 27, 2014, appellant entered an open guilty plea to the above
charges. An additional charge of receiving stolen property was withdrawn as
part of the plea agreement. The trial court conducted a plea colloquy on the
record, and appellant also completed a written guilty plea colloquy. (Notes
of testimony, 3/27/14 at 37-42; docket #6.) Appellant received a sentence
of three to six years’ incarceration for possession of a firearm with
J. S09012/15
manufacturer number altered, and two years’ consecutive probation for
tampering with physical evidence. Appellant also received a sentence of
two years’ concurrent probation for false identification, with no further
penalty at the remaining counts; therefore, appellant’s aggregate sentence
was three to six years’ incarceration followed by two years of reporting
probation.1
On April 3, 2014, appellant filed a timely post-sentence motion to
withdraw his guilty plea, which was denied on April 4, 2014. This timely
appeal followed on May 2, 2014. On June 16, 2014, appellant was ordered
to file a concise statement of errors complained of on appeal within 21 days
pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; appellant timely complied
on June 26, 2014, and on September 15, 2014, the trial court filed a
Rule 1925(a) opinion.
Appellant has raised the following issues for this court’s review:
1. Did the Trial Court abuse its discretion when it
refused to grant Appellant an Evidentiary
Hearing on his Post-Sentence Motion seeking
to withdraw his guilty plea?
2. Did the Trial Court, in imposing a two-year
probation sentence on Count Six [(false
identification to law enforcement authorities)]
of Allegheny County Criminal Complaint
No. 2013-12381, impose an illegal sentence on
that count?
1
Appellant’s sentence on count one, the firearms charge, was in the
mitigated range of the sentencing guidelines. (Notes of testimony, 3/27/14
at 49.)
-2-
J. S09012/15
Appellant’s brief at 3.
In his first issue on appeal, appellant argues that the trial court abused
its discretion by failing to hold an evidentiary hearing on appellant’s
post-sentence motion for withdrawal of his guilty plea. Pennsylvania Rule of
Criminal Procedure 720, governing post-sentencing procedures, provides, in
relevant part: “(b) Hearing; Argument. The judge shall also determine
whether a hearing or argument on the motion is required, and if so, shall
schedule a date or dates certain for one or both.” Pa.R.Crim.P.,
Rule 720(B)(2)(b), 42 Pa.C.S.A.
Appellant next asserts the trial court erred by not
holding a hearing on his motion to withdraw his plea
of nolo contendere. Pennsylvania Rule of Criminal
Procedure [720] does not require a hearing to be
held to deal with a motion to withdraw a plea of
guilty; rather, it merely states the trial court may
schedule a hearing on the motion. Commonwealth
v. Savilla, 338 Pa.Super. 292, 487 A.2d 971 (1985).
Therefore, the decision whether to hold a hearing is
left to the discretion of the trial court. See
Pa.R.Crim.P. [720](B)(2)(b). “It is true that in
‘borderline cases’ a hearing should be granted . . . .
However, this should not lead to the grant of a
hearing every time a claim is made that a guilty plea
was improperly induced.” Commonwealth v.
Cappelli, 340 Pa.Super. 9, 489 A.2d 813, 819
(1985) (en banc).
Commonwealth v. Stork, 737 A.2d 789, 791 (Pa.Super. 1999), appeal
denied, 764 A.2d 1068 (Pa. 2000).
“When considering a petition to withdraw a plea submitted to a trial
court after sentencing, it is well-established that a showing of prejudice on
-3-
J. S09012/15
the order of manifest injustice is required before withdrawal is properly
justified.” Commonwealth v. Byrne, 833 A.2d 729, 737 (Pa.Super. 2003),
quoting Commonwealth v. Johns, 812 A.2d 1260, 1261 (Pa.Super. 2002)
(emphasis in original).
The standard for withdrawal of a guilty plea after
imposition of sentence is much higher [than the
standard applicable to a presentence motion to
withdraw]; a showing of prejudice on the order of
manifest injustice is required before withdrawal is
properly justified. A plea rises to the level of
manifest injustice when it was entered into
involuntarily, unknowingly, or unintelligently.
Id., quoting Commonwealth v. Muhammad, 794 A.2d 378, 383
(Pa.Super. 2002) (citations and internal quotation marks omitted).
A showing of manifest injustice is required after
imposition of sentence since, at this stage of the
proceeding, permitting the liberal standard
enunciated in [the presentence setting] might
encourage the entrance of a plea as a “sentence
testing device.” We note that disappointment by a
defendant in the sentence actually imposed does not
represent manifest injustice.
Id. (citations omitted).
Instantly, we agree with the trial court that appellant’s motion was
meritless on its face and the record indicates his plea was entered into
voluntarily, knowingly, and intelligently. There was no need for a hearing on
the matter, and the trial court did not abuse its discretion in denying
appellant’s motion to withdraw his guilty plea without a hearing. (Trial court
opinion, 9/15/14 at 6-7.)
-4-
J. S09012/15
Appellant’s claim in his post-sentence motion that his decision to
forfeit his right to a trial was entered into involuntarily, that he is actually
innocent of the charges, and that he did not know the potential
consequences of his decision to plead guilty, is belied by the record. (Docket
#10.) Appellant executed a written guilty plea colloquy, with the assistance
of counsel, in which he acknowledged his right to a jury trial. We also note
that immediately prior to entering a plea in this case, appellant had a
non-jury trial on an unrelated case and was found guilty of disorderly
conduct, resisting arrest and criminal mischief. (Notes of testimony,
3/27/14 at 43.) Clearly, appellant was aware of his right to go to trial.
In addition, the trial court conducted an oral plea colloquy during
which appellant acknowledged the terms of the plea agreement, stated that
he was satisfied with counsel’s representation, and that he was pleading
guilty because he was, in fact, guilty. (Id. at 37-42.) The Commonwealth
also set forth the factual basis for the plea. (Id. at 39-41.) “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.”
Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003), citing
Stork, 737 A.2d at 790-791. To the extent appellant was disappointed with
-5-
J. S09012/15
the sentence imposed, that is not grounds for withdrawal.2 There is no
manifest injustice here. The trial court did not abuse its discretion in
denying appellant’s post-sentence motion to withdraw his guilty plea without
a hearing.
Next, appellant claims that the sentence imposed at count six, false
identification, was illegal as it exceeded the statutory maximum of one year.
“If no statutory authorization exists for a particular sentence, that sentence
is illegal and subject to correction. An illegal sentence must be vacated.”
Commonwealth v. Melvin, 103 A.3d 1, 52 (Pa.Super. 2014).
False identification to law enforcement is a third-degree misdemeanor
punishable by up to one year of imprisonment. 18 Pa.C.S.A. § 1104(3).
The length of any probationary term may not exceed the maximum term for
which the defendant could be confined. 42 Pa.C.S.A. § 9754(a). Therefore,
appellant is correct that his sentence of two years’ probation for false
identification is illegal and must be vacated. However, we will not remand
for resentencing where the sentence was run concurrently with his two-year
probationary term at count five, tampering with physical evidence, and the
trial court’s overall sentencing scheme remains intact. Indeed, the trial
court has stated that remand is unnecessary. (Trial court opinion, 9/15/14
2
Again, we note that appellant’s sentence was in the mitigated range of the
guidelines. On the other case, appellant received a sentence of two years’
probation for resisting arrest and no further penalty for criminal mischief.
(Notes of testimony, 3/27/14 at 50-51.) The trial court observed that
appellant received a very lenient sentence. (Id. at 52.)
-6-
J. S09012/15
at 8.) See Melvin, 103 A.3d at 56 (“This Court has the authority to correct
an illegal sentence directly rather than to remand the case for re-sentencing
so long as we do not disrupt the trial court’s sentencing scheme in doing
so.”) (citations omitted).
Appellant’s sentence at count six, false identification, is hereby
vacated. Otherwise, the judgment of sentence is affirmed. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2015
-7-