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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTONIO CARTER,
Appellant No. 1787 EDA 2014
Appeal from the Judgment of Sentence May 13, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008902-2013
BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 07, 2015
Appellant, Antonio Carter, appeals from the judgment of sentence
entered on May 13, 2014, in the Philadelphia County Court of Common
Pleas. We affirm.
In an opinion filed on October 16, 2014, the trial court set forth the
relevant facts and procedural history of this matter as follows:
On June 21, 2013, Appellant was charged with rape,
indecent assault, and other related charges. On May 13, 2014,
prior to proceeding to trial, Appellant indicated his desire to
enter a nolo contendere plea. Appellant, represented by
Zachary Shaffer, Esquire, entered into a negotiated nolo
contendere plea to indecent assault, a felony in the third degree.
Appellant negotiated with the Commonwealth for a
recommendation of sentence consisting of time served to 23
months with immediate parole followed by five years reporting
probation, tier III Megan’s law lifetime reporting, sex offender
supervision, and no unsupervised contact with minors for the
third-degree felony indecent assault plea. The Commonwealth
entered a nolle prosequi on the other related charges.
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[The trial court] conducted a thorough colloquy of
Appellant (N.T. 5/13/14, 4-8). During the colloquy, Appellant
was specifically informed of the crime and facts to which he was
pleading nolo contendere; he acknowledged that he understood
them (N.T. 5/13/14, 5-8). In addition, Appellant in writing, again
confirmed his nolo contendere plea (Written Nolo Contendere
Colloquy, Appendix A). This Court then performed an oral
colloquy, during which the Appellant responded affirmatively to
all questions regarding whether or not he was knowingly,
intelligently and voluntarily entering the plea (N.T. 5/13/14, 7-
8). This Court accepted Appellant’s nolo contendere plea.
Defense counsel then agreed to immediate sentencing. (N.T.
5/13/14, 9). Appellant did not file a motion to withdraw his plea
prior to sentencing, or indicate any desire to do so. This Court
then sentenced the Appellant to the negotiated sentence of time
served to 23 months with immediate parole plus five years of
sex offender probation, and tier III Megan’s Law lifetime
reporting. (N.T. 5/13/14, 10-11).
On May 13, 2014, after sentencing, Appellant filed a Post
Sentence Motion, namely a Petition to Withdraw Nolo
Contendere Plea. In his Petition, Appellant claimed he is
asserting his innocence. (Petition to Withdraw Nolo Contendere
Plea, Appendix B). This Court denied the petition to withdraw the
plea without a hearing in an Order dated June 6, 2014. (Order,
6/6/14, Appendix C). On June 13, 2014, this Court received a
Notice of Appeal to the Superior Court. On June 25, 2014, this
Court issued an order pursuant to Pa.R.A.P. Rule 1925(b)
requiring the Appellant to file a concise statement of matters
complained of on appeal within 21 days. On July 9, 2014,
Appellant filed his 1925(b) statement.
Trial Court Opinion, 10/16/14, at 1-2 (unnumbered pages).
On appeal, Appellant claims that the trial court erred in denying his
petition to withdraw his guilty plea. Appellant’s Brief at 4. Specifically,
Appellant argues as follows:
[Appellant] attempted to withdraw his guilty plea, via a
post sentencing motion. [sic] just hours after his plea was
entered and he was sentenced. [Appellant] plead nolo
contendere as part [of] a negotiated plea. [Appellant]
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continuously asserted his innocence, knew precisely what
sentence he would be receiving as part of a negotiated plea, and
attempted to withdraw his plea hours after he plead. None of the
traditional concerns of post-sentence withdrawals exist, because
[Appellant] was not sentence-testing, nor did he ever admit
guilt. Given that those concerns are not present[,] [Appellant’s]
motion to withdraw should be analyzed under the pre-sentence
standard.
Id. at 7.
Our standard of review is well settled:
At any time before the imposition of sentence, the court may, in
its discretion, permit, upon motion of the defendant, or direct
sua sponte, the withdrawal of a plea of guilty or nolo contendere
and the substitution of a plea of not guilty. Pa.R.Crim.P 591(A);
Commonwealth v. Santos, 450 Pa. 492, 494, 301 A.2d 829,
830 (1973). Although there is no absolute right to withdraw a
guilty plea, properly received by the trial court, it is clear that a
request made [b]efore sentencing ... should be liberally allowed.
Commonwealth v. Forbes, 450 Pa. 185, 190, 299 A.2d 268,
271 (1973). Thus, in determining whether to grant a pre-
sentence motion for withdrawal of a guilty plea, the test to be
applied by the trial courts is fairness and justice. Id. at 191,
299 A.2d at 271. If the trial court finds any fair and just reason,
withdrawal of the plea before sentence should be freely
permitted, unless the prosecution has been substantially
prejudiced. Id.
Commonwealth v. Prendes, 97 A.3d 337, 351-352 (Pa. Super. 2014)
(internal quotation marks omitted), appeal denied, 105 A.3d 736 (Pa. 2014).
In contrast, after the court has imposed a sentence, a defendant
can withdraw his guilty plea only where necessary to correct a
manifest injustice. Commonwealth v. Starr, 450 Pa. 485,
490, 301 A.2d 592, 595 (1973). Post-sentence motions for
withdrawal are subject to higher scrutiny since courts strive to
discourage the entry of guilty pleas as sentencing-testing
devices. Commonwealth v. Kelly, 5 A.3d 370, 377
(Pa.Super.2010), appeal denied, 613 Pa. 643, 32 A.3d 1276
(2011). If the appellant knows the only possible sentence he
can get for the crime to which he pled guilty, then any pre-
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sentence motion to withdraw the plea is akin to a post-sentence
motion to withdraw the plea, and the manifest injustice standard
will apply to the pre-sentence motion. Commonwealth v.
Lesko, 502 Pa. 511, 517, 467 A.2d 307, 310 (1983).
Prendes, 97 A.3d 337 at 352 (internal quotation marks omitted and
emphasis added).
Here, Appellant alleges that the trial court erred in applying the post-
sentence standard and, instead, should have applied the more relaxed pre-
sentence standard. Appellant endeavors to support this argument by
highlighting that he plead nolo contendere to indecent assault as part of his
negotiated plea agreement. Appellant’s Brief at 10. Appellant subsequently
“rethought his decision to [enter a] plea, asserted his innocence, and filed
post sentence motions with the trial court asking to withdraw his plea[.]”
Id. As noted above, Appellant claims “there is no issue with with [sic]
Appellant attempting to use his plea as a ‘sentence-testing
device.’ . . . Appellant was well aware of his sentence as it had been
previously explained to him by council [sic], was clearly detailed on his
written guilty plea colloquy, and was discussed on the record by the trial
court.” Id. at 10-11 (emphasis added, citations omitted). Appellant’s
argument is inapposite.
It is undisputed that Appellant’s plea agreement included a negotiated
sentence of which he was fully aware. Appellant’s Brief at 10. “Because
Appellant was fully aware of the sentence he would receive, the ‘manifest
injustice’ standard applied.” Prendes, 97 A.3d at 354. Accordingly,
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because the trial court applied the correct standard, we discern no error or
abuse of discretion in the trial court’s order denying Appellant’s motion to
withdraw his guilty plea. Therefore, we affirm appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015
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