J-S18017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PETER MOBLEY,
Appellant No. 1348 EDA 2014
Appeal from the Judgment of Sentence entered June 30, 2008,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-1207921-2004
BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.
MEMORANDUM BY ALLEN, J.: FILED MARCH 23, 2015
Peter Mobley (“Appellant”) appeals from the judgment of sentence
imposed after he pled guilty to one count of attempted murder.1 We affirm.
The pertinent facts and procedural history are as follows: The
Commonwealth charged Appellant at two separate docket numbers after he
fired multiple gunshots at Philadelphia Police Officers James Crown and
Michael Trask. Each docket charged multiple crimes involving one of the
police officers. At issue in this appeal is the docket involving Officer Crown.
Appellant proceeded to a jury trial at both docket numbers. On April
11, 2008, the jury convicted Appellant of aggravated assault with respect to
Officer Crown, as well as multiple firearm and weapons violations. The jury
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1
See 18 Pa.C.S.A. §§ 903 and 2501.
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deadlocked on the other charges, including attempted murder with respect
to both officers and aggravated assault as to Officer Trask.
On April 28, 2008, rather than face retrial for the attempted murder of
both officers, Appellant entered into an open guilty plea to attempted
murder of Officer Crown and, at a separate docket, to the aggravated
assault of Officer Trask. In exchange, the Commonwealth agreed to dismiss
all remaining charges at both dockets.
On June 30, 2008, the trial court sentenced Appellant for his guilty
pleas at both dockets. Relevant to the instant appeal, the trial court
imposed a mitigated range sentence of nine to eighteen years of
incarceration for the attempted murder of Officer Crown. See N.T.,
6/30/08, at 5.2
On December 6, 2014, following the grant of post-conviction relief,
Appellant filed a nunc pro tunc post-sentence motion to withdraw his guilty
plea. Within this motion, Appellant claimed that his guilty plea was not
knowing and voluntary solely because plea counsel “contacted [Appellant]
and promised him that he could guarantee a sentence of no more than 7½
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2
As to the other convictions from Appellant’s earlier jury trial at this docket,
the trial court imposed concurrent sentences, except for a two and one-half
to five year consecutive sentence for a firearm violation. See N.T., 6/30/08,
at 6-8. In addition, with regard to the aggravated assault of Officer Trask,
the trial court imposed a consecutive six to twelve year sentence. Thus,
Appellant’s aggregate sentence from both dockets is seventeen and one-half
to thirty-five years of imprisonment.
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to 15 years, concurrent with any other sentences if he pled open[.]” Post-
Sentence Motion, 12/6/13, at ¶ 6. On February 28, 2014, the trial court
denied Appellant’s motion. This timely appeal followed. Both Appellant and
the trial court have complied with Pa.R.A.P. 1925.
Appellant raises a single issue:
I. Whether the trial court erred by denying [Appellant] the
right to withdraw his guilty plea because the guilty plea
was not knowing and voluntary.
Appellant’s Brief at 2. In support of this claim, Appellant asserts that he
“was not advised of the correct sentencing guidelines at the time of the plea”
and that he “was not advised that the sentences could be imposed
consecutively.” Id. at 9.
Before considering the merits of Appellant’s claim, we must first
determine whether it is properly before us. Appellant did not raise the
above arguments as grounds to withdraw his guilty plea in his post-sentence
motion. Rather, Appellant first raised his claim in his Pa.R.A.P. 1925(b)
statement. Thus, the claim is being raised inappropriately for the first time
on appeal. See Pa.R.A.P. 302(a); Commonwealth v. Sanchez. 36 A.3d
24, 42-43 (Pa. 2011) (explaining that an issue raised for the first time in a
Pa.R.A.P. 1925(b) statement generally results in waiver).
Even if Appellant had properly preserved his claim, he would not be
entitled to relief. “[A] defendant who attempts to withdraw a guilty plea
after sentencing must demonstrate prejudice on the order of manifest
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injustice before withdrawal is justified.” Commonwealth v. Pantalion, 957
A.2d 1267, 1271 (Pa. Super. 2008) (citation omitted). A showing of
manifest injustice may be established if the plea was entered into
involuntarily, unknowingly, or unintelligently. Id.
As this Court has summarized:
Pennsylvania has constructed its guilty plea procedures
in a way designed to guarantee assurance that guilty
pleas are voluntarily and understandingly tendered. The
entry of a guilty plea is a protracted and comprehensive
proceeding wherein the court is obliged to make a specific
determination after extensive colloquy on the record that
a plea is voluntarily and understandingly tendered.
Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993)
(citation omitted).
Rule 590 of the Pennsylvania Rules of Criminal Procedure requires that
a guilty plea be offered in open court, and provides a procedure to
determine whether the plea is voluntarily, knowingly, and intelligently
entered. As noted in the Comment to Rule 590, at a minimum, the trial
court should ask questions to elicit the following information:
(1) Does the defendant understand the nature
of the charges to which he or she is
pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or
she has the right to trial by jury?
(4) Does the defendant understand that he or
she is presumed innocent until found
guilty?
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(5) Is the defendant aware of the permissible
range 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?
Pa.R.Crim.P. 590, Comment.3
This Court has further summarized:
In 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. Thus, even though there is an
omission or defect in the guilty plea colloquy, 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.
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)
(quoting Fluharty, 632 A.2d at 314-15)).
Finally, when addressing an appellate challenge to the validity of a
guilty 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.
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3
The Comment to Rule 590 includes a seventh proposed question that is
only applicable when a defendant pleads guilty to murder generally.
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* * *
The longstanding rule of Pennsylvania law is that a
defendant may not challenge his guilty plea by asserting
that he lied while under oath, even if he avers that counsel
induced the lies. A person who elects to plead guilty is
bound by the statements he makes in open court while
under oath and may not later assert grounds for
withdrawing the plea which contradict the statements he
made at his plea colloquy.
* * *
[A] defendant who elects to plead guilty has a duty to
answer questions truthfully. We [cannot] permit a
defendant to postpone the final disposition of his case by
lying to the court and later alleging that his lies were
induced by the prompting of counsel.
Commonwealth v. Yeomans, 24 A.3d at 1047 (quoting Commonwealth
v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)).
In rejecting Appellant’s initial claim regarding the validity of his plea,
the trial court explained:
In the instant case, based on the totality of the
circumstances, [Appellant’s] plea was entered into
knowingly, intelligently and voluntarily. Before [Appellant]
pled guilty, the Commonwealth stated that [Appellant’s]
prior record score was four; at sentencing, the
Commonwealth stated that the pre-sentence report
indicated that [Appellant’s] prior record score was a five.
(N.T. 4/28/08, at 4-5; N.T. 6/27/08 at 5-7). At the time
of sentencing, however, [Appellant] not only was present
when the updated prior record score was announced, but
defense counsel stated on the record that, “Your Honor, we
received the presentence report and prior record score.
I’ve reviewed that with [Appellant], and we’re ready to go
forward today.” (N.T. 6/27/08 at 9). Thus, [Appellant]
was properly advised of his actual prior record score and
sentencing guidelines before imposition of sentence. Had
[Appellant] desired to withdraw his guilty plea before
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sentencing, he could have easily made a motion to do so
then. Instead, he elected to move forward. As
[Appellant’s] correct prior record score was used to arrive
at [his] sentence, his claim that his guilty plea was invalid
is without merit.
Furthermore, [Appellant] entered his guilty plea
voluntarily, knowingly and intelligently. This Court
engaged in an extensive colloquy of [Appellant]. (N.T.
4/28/08, at 21). [Appellant] signed two guilty plea
colloquy forms acknowledging his guilt for the Aggravated
Assault of Officer Trask, as well as [the] Attempted Murder
of Officer Crown. The forms advised [Appellant] of the
plea agreement terms and the rights that he would forgo
by entering the plea, including that he was presumed
innocent until proven guilty, that he had a right to a trial
by judge or jury and that he was entitled to a defense.
The form also informed [Appellant] that he was aware that
the judge is not bound by the terms of any plea
agreement. Moreover, [Appellant] acknowledged that, by
signing the form, he was not threatened or forced to plea,
he was satisfied with his [legal] representation, and the
facts and elements of the crime would be read to him.
In addition to the forms, this Court conducted an oral
colloquy during which the Commonwealth stated the terms
of [Appellant’s] open plea agreement, and [Appellant]
agreed to those terms. (Id. at 3-4). This Court then
confirmed that [Appellant] willingly and competently
signed the guilty plea form or forms and informed
[Appellant] of his limited appeal rights. (Id. at 8-14). In
doing so, this Court confirmed that [Appellant] did not
receive any promises other than those contained in the
plea agreement. (Id. at 13). The Commonwealth read a
summary of the . . . facts and circumstances surrounding
the incident, and [Appellant] acknowledged that he
understood those facts and offered no corrections or
modifications. (Id. at 18-20).
Trial Court Opinion, 6/30/14, at 5-7 (citation omitted).
Our review of the certified record supports the trial court’s conclusions.
Thus, Appellant’s first basis for invalidating his guilty plea fails.
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Appellant also claims that his guilty plea is invalid because “before he
pled guilty, [he] was not told by the court, the Commonwealth or his counsel
about the potential maximum penalty by virtue of possible consecutive
sentences.” Appellant’s Brief at 9.
Our review of the record refutes Appellant’s claim. In the docket at
issue in this appeal, Appellant’s guilty plea involved only a single count of
the attempted murder of Officer Crown. Appellant was informed of the
maximum possible sentence he could receive for such a conviction. See
Written Plea Colloquy, 4/28/08. Appellant’s reliance upon this Court’s recent
decision in Commonwealth v. Diehl, 61 A.3d 265 (Pa. Super. 2013), is
inapt. Unlike the facts in this case, Diehl involved sentencing on multiple
counts to which the defendant pled guilty at the same docket number. See
id. at 266. Here, Appellant’s true complaint is that he was not informed that
his sentence for the attempted murder of Officer Crown could be imposed
consecutive to the other charges at the same docket for which a jury
convicted him earlier, as well as his aggravated assault plea involving Officer
Trask at the other docket. Appellant cites no authority to support his claim.4
As stated by the Commonwealth, “The law does not require that [Appellant]
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4
For this reason, we cannot agree with the trial court’s request that we
remand so that it could vacate Appellant’s consecutive sentence for his
firearm violation at this docket. See Trial Court Opinion, 6/30/14, at 8. As
cited infra, the provisions of Pa.R.Crim.P. 590 include no such requirement.
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be notified of all hypothetical aggregate sentences that could result when
the sentence to which he is pleading guilty is run consecutively to other
convictions outside the plea deal.” Commonwealth Brief at 15.
Finally, “as the law makes clear, a trial court may consider a wide
array of relevant evidence [under the totality of the circumstances test] in
order to determine the validity of a claim and plea agreement including, but
not limited to, transcripts from other proceedings, off-the-record
communications with counsel, and written plea agreements.”
Commonwealth v. Allen, 732 A.2d 582, 589 (Pa. 1999). Here, the trial
court referenced comments made by Appellant’s plea counsel at sentencing.
It explained:
[I]t is clear that [Appellant] was aware of [the
possibility of consecutive sentences] before sentence was
imposed. At the time of sentencing, when asking this
Court to impose a mitigated sentence, defense counsel
said, “I’m asking the Court to sentence [Appellant] to a
period of incarceration in the mitigated range…I’m not
asking for five to ten, Your Honor. I’m asking for the
totality of the sentence, and how Your Honor wishes to
structure that per charge, to the totality of the sentence
being [in the] mitigated range of 102 months to 204
months...” (N.T. 6/27/08 at 24). Based on that
statement, defense counsel clearly knew that the sentence
could run consecutively, as defense counsel asked the
judge to structure the sentence per charge in order to
arrive at an aggregate sentence of eight and a half (8.5) to
seventeen (17) years and counsel by this recommendation
clearly understood that the Court could impose a sentence
in excess of twenty (20) years. Otherwise, defense
counsel would have been asking for a sentence close to the
maximum. As defense counsel conferred with [Appellant]
before sentencing, [Appellant] was likely advised that he
could receive consecutive sentences exceeding twenty
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years. Thus, [Appellant] could have easily withdrawn his
guilty plea before the imposition of sentence.
Trial Court Opinion, 6/30/14, at 7-8.
In sum, because Appellant’s claims regarding his guilty plea are
waived and otherwise without merit, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2015
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