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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRANDON WILLIAM GROVER,
Appellant No. 440 WDA 2015
Appeal from the Judgment of Sentence Entered August 12, 2014
In the Court of Common Pleas of Potter County
Criminal Division at No(s): CP-53-CR-0000055-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 29, 2015
Appellant, Brandon William Grover, appeals from the judgment of
sentence of an aggregate term of 3 to 6 years’ imprisonment, imposed after
he pled guilty to aggravated assault, accidents involving death or personal
injury, and recklessly endangering another person. Appellant asserts that
the trial court abused its discretion in denying his post-sentence motion to
withdraw his guilty plea. We affirm.
The trial court summarized the relevant facts and procedural history in
its Pa.R.A.P. 1925(a) opinion as follows:
On January 30, 2013[,] charges, being 19 counts including 4
felonies, were filed against [Appellant] concerning an incident
where it is alleged that [Appellant] did strike two individuals with
his vehicle. On August 12, 2014, after being scheduled for jury
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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selection on several occasions, [Appellant] pled guilty to Count 3
– Aggravated Assault; Count 5 – Accidents Involving Death or
Personal Injury[;] and Count 11 – Recklessly Endangering
Another Person. Also on August 12, 2014, [Appellant] was
sentenced in accordance with his binding Plea Agreement with
an agreed upon sentence of 3-6 years of incarceration. The
sentence[,] which was reduced to a written Order of Sentence[,]
was signed on August 13, 2014, and filed on August 14, 2014.
Subsequently on August 14, 2014, [Appellant] filed a Motion
Challenging the Validity of Guilty Plea alleging that Defense
Counsel, Daniel Stefanides[,] and the District Attorney, Andy
Watson[,] coerced him into entering a guilty plea. Attorney
Stefanides filed a Motion to Withdraw at the same time as
[Appellant’s] Motion Challenging the Validity of [ ] Guilty Plea.
On November 12, 2014[,] Attorney Richard McCoy was
appointed to represent [Appellant] in the Motion Challenging the
Validity of Guilty Plea. On December 12, 2014[,] argument was
heard on both the Motion Challenging the Validity of Guilty Plea
and the Motion to Withdraw. Attorney Stefanides was granted
leave to withdraw. [Appellant] provided testimony as to the
reasoning behind his decision to enter a Plea. [Appellant]
reported that prior to entry of the Plea, [ ] he discussed the case
with the District Attorney and his Attorney, Dan Stefanides[,]
and that his counsel advised him that he could be facing 15 to
30 years of incarceration if he did not accept the Plea.
Thereafter, [Appellant] acknowledged that he signed a binding
Plea which included a sentence of 3-6 years of incarceration.
[Appellant] admits that he understood the 3-6 year
recommended sentence. [Appellant] testified that he obtained
his GED and attended some education through Boces in NY. The
Court engaged with [Appellant] in an extensive colloquy at the
time of the Plea proceeding and [Appellant] acknowledged that
his Plea was knowing and voluntary.
[Appellant’s] former counsel, Daniel Stefanides[,] testified
that he met [Appellant] at the jail on Friday, August 6, 2014[,]
to discuss the Plan. Attorney Stefanides reported that he had
advised [Appellant] they could go to trial if he desired to do so.
Additionally, Mr. Stefanides advised [Appellant] that the Plea
would result in three of the felonies being nolle prossed.
Attorney Stefanides testified that he reviewed the Plea
documents with [Appellant] line by line. Attorney Stefanides
report[ed] that [Appellant] never made any mention that he felt
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coerced and Counsel was not aware of any threats being made
to [Appellant]. The Court finds Attorney Stefanides credible and
[Appellant] to no[t] be credible based upon the testimony and
the contents of the Plea and Sentencing hearings.
Trial Court Order (TCO), 2/11/15, at 1-2 (unpaginated).
The trial court denied Appellant’s motion challenging the validity of his
guilty plea by order of court dated February 5, 2015. Appellant timely filed a
notice of appeal on March 6, 2015, followed by a timely court ordered
statement of errors complained of on appeal. Appellant now presents one
issue for our review: “Did the trial court err in denying [Appellant’s] post-
sentence motion to withdraw his guilty plea because [Appellant] testified
that he felt coerced into entering his guilty plea and was denied the
opportunity to discuss extraneous issue[s] during his allocution?”
Appellant’s Brief at 2.
We begin by noting the standard for withdrawal of a guilty plea, which
we previously explained in detail as follows:
[A] defendant has no absolute right to withdraw a guilty plea;
rather, the decision to grant such a motion lies within the sound
discretion of the trial court. Commonwealth v. Hutchins, 453
Pa. Super. 209, [212,] 683 A.2d 674, 675 (1996). In the
seminal case of Commonwealth v. Forbes, 450 Pa. 185, 299
A.2d 268 (1973), the Supreme Court set forth the standard for
determining when a motion to withdraw a guilty plea prior to
sentencing should be granted. The Court stated that “although
there is no absolute right to withdraw a guilty plea, properly
received by the trial court, it is clear that a request made before
sentencing … should be liberally allowed.” 450 Pa. at 190, 299
A.2d at 271. The Court then outlined the now well-established
two prong test for determining when to grant a pre-sentence
motion to withdraw a plea: (1) the defendant has provided a
“fair and just reason” for withdrawal of his plea; and (2) the
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Commonwealth will not be “substantially prejudiced in bringing
the case to trial.” Id.
The standard for withdrawal of a guilty plea after imposition of
sentence is much higher; a “showing of prejudice on the order of
manifest injustice is required before withdrawal is properly
justified.” Commonwealth v. Carpenter, 555 Pa. 434, 454,
725 A.2d 154, 164 (1999) (quoting Commonwealth v.
Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982)). “A plea
rises to the level of manifest injustice when it was entered into
involuntarily, unknowingly, or unintelligently.” Commonwealth
v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999) (citation
omitted).
Commonwealth v. Muhammad, 794 A.2d 378, 382-383 (Pa. Super.
2002). As we explained in Muhammad, the higher “manifest injustice”
standard is applied to a post-sentence withdrawal of a guilty plea in an effort
to discourage the entrance of a plea as a “sentence testing device.” Id. We
further note that “disappointment by a defendant in the sentence actually
imposed does not represent manifest injustice.” Id.
Here, Appellant asserts that he “suffered a manifest injustice in this
case” because he was pressured by his attorney to enter into a guilty plea
based on the false assurance that he would have the right to read a
prepared statement to the court. Appellant’s Brief at 7. Appellant claims
that, instead, the court prevented him from reading his entire statement,
thereby denying him a full and complete opportunity to exercise his right of
allocution. Id.
As explained by the trial court in its Rule 1925(a) opinion:
On the same date as the Plea, being August 12, 2014,
[Appellant] was sentenced in conformity with the binding Plea
Agreement. During that proceeding[, Appellant] read a portion
of a written statement to the [c]ourt. The subject of the
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statement was [Appellant’s] other case (47 of 2013) and
[Appellant’s] belief that Judge Leete who was presiding over that
case should recuse himself. The [c]ourt informed [Appellant]
that it was only considering matters pertinent to the present
case. [Appellant] then indicated that for the present case he
was satisfied with his Plea, satisfied with his attorney’s
representation, and that he understood his Plea. [Appellant]
then indicated there was nothing else the [c]ourt needed to
know about [Appellant] or his life prior to sentencing. When
asked if they had any questions regarding the sentence of the
[c]ourt[,] both Defense Counsel and [Appellant] indicated that
they did not.
TCO at 4 (unpaginated).
In order to establish manifest injustice, Appellant must show that his
plea was entered into involuntarily, unknowingly, or unintelligently. To
ascertain whether Appellant entered his plea in such a manner,
we must examine the guilty plea colloquy. The colloquy must
inquire into the following areas: (1) the nature of the charges;
(2) the factual basis of the plea; (3) the right to trial by jury; (4)
the presumption of innocence; (5) the permissible range of
sentences; and (6) the judge’s authority to depart from any
recommended sentence. This Court evaluates the adequacy of
the guilty plea colloquy and the voluntariness of the resulting
plea by examining the totality of the circumstances surrounding
the entry of that plea.
Id. at 383-384 (internal quotation marks and citations omitted).
The record clearly reflects a guilty plea colloquy by the trial court
addressing all of the aforementioned areas. See N.T. Plea/Sentencing
Hearing, 8/12/14, at 2-7. Moreover, the record indicates that the trial court
specifically asked Appellant regarding his guilty plea: “Now, have you had
enough time to fully discuss this matter, and is your decision something that
you’ve reached and you believe it is a knowing and voluntary decision?” Id.
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at 6. Appellant responded, “Yes.” Id. It was not until the hearing on the
post-sentence motion to withdraw his guilty plea that Appellant claimed to
have been coerced into accepting the guilty plea. N.T. Post-Sentence Motion
Hearing, 3/16/15, at 2. “[O]ne is bound by one’s statements made during a
plea colloquy, and may not successfully assert claims that contradict such
statements.” Muhammad, 794 A.2d at 384. See also Commonwealth v.
Barnes, 687 A.2d 1163, 1167 (Pa. Super. 1996). Additionally, Appellant’s
former counsel, Attorney Stefanides, stated during the plea proceeding that
he believed Appellant’s guilty plea to be a knowing and voluntary decision.
N.T. Plea/Sentencing Hearing at 7. The trial court found Attorney
Stefanides’ testimony to be credible. TCO at 2 (unpaginated).
At the hearing on Appellant’s post-sentence motion, Attorney
Stefanides further testified that he went over the plea agreement with
Appellant line by line, Appellant seemed to understand the agreement, and
Appellant never complained about feeling coerced into entering the plea
agreement. N.T. Post-Sentence Motion Hearing at 23-24. Moreover, the
trial court indicated that during the post-sentence motion hearing, it “did not
find [Appellant] to be credible when he testified that his counsel and the
Commonwealth coerced him into entering a guilty plea. No mention of said
coercion was made at the time of the Plea Sentencing proceedings.” TCO at
4 (unpaginated). “On issues of credibility … an appellate court defers to the
findings of the trial judge, who has had the opportunity to observe the
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proceedings and demeanor of the witnesses.” Commonwealth v.
Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002).
We disagree with Appellant’s assertion that he suffered a “manifest
injustice” because the trial court prevented him from reading his prepared
statement in its entirety at the sentencing hearing. As we noted in
Commonwealth v. Jacobs, 900 A.2d 368 (Pa. Super. 2006), “[a]llocution
is governed by Pa.R.Crim.P. 704(C)(1), which states: At the time of
sentencing, the judge shall afford the defendant the opportunity to make a
statement in his or her behalf and shall afford counsel for both parties the
opportunity to present information and argument relative to sentencing.”
Commonwealth v. Jacobs, 900 A.2d at 375. (internal quotations omitted
and emphasis added). “The significance of allocution lies in its potential to
sway the court toward leniency prior to imposition of sentence.”
Commonwealth v. Hague, 840 A.2d 1018, 1020 (Pa. Super. 2003).
Although Pennsylvania courts have not specifically addressed the limits
of the right to allocution, the Third Circuit provided the following guidance in
U.S. v. Ward, 732 F.3d 175 (3d. Cir. 2013):
Under existing jurisprudence, the defendant’s right of allocution
is not unlimited. The sentencing judge has always retained the
discretion to place certain restrictions on what may be presented
during an allocution. … [A] sentencing judge may impose
procedural limitations during an allocution, so long as the judge
personally addresses the defendant and offers him the
opportunity to address the court before the sentence is
pronounced.
Id. at 182-183. (internal citations omitted).
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Here, the trial court did give Appellant the opportunity to read his
prepared statement prior to sentencing. See N.T. Plea/Sentencing Hearing
at 7. However, Appellant’s statement focused primarily on a separate prior
case and his grievances with the prior judge. Id. at 18-19. The presiding
trial court judge interrupted Appellant to explain to him that he was not
sentencing him based on what happened in the prior case and that there
were other avenues by which he could pursue his claims against the prior
judge. Id. at 19-21. The court then inquired whether there was anything
Appellant wanted the court to know about himself or whether there were
changes he wanted to make in his life that would affect the court’s
determination regarding his sentence. Id. Even after Appellant responded
by continuing to reference the prior case, it is clear by the following colloquy
that the trial court attempted to give Appellant every chance to exercise his
right of allocution:
THE COURT: … Just talking about this case, my understanding is
you’re satisfied with your plea today in this matter, you’re
satisfied with your attorney in this matter, you understand this
plea, all of that is true, is that correct?
[APPELLANT]: Yes.
THE COURT: Is there anything else I should know about you,
[Appellant], about your life, about what you want to do with
your life that would be important to me in making decisions on
this case?
[APPELLANT]: No, Your Honor.
N.T. Plea/Sentencing Hearing at 21-22.
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After careful review of the record, we conclude that Appellant failed to
demonstrate that his guilty plea was entered in an involuntary, unknowing,
or unintelligent manner. Therefore, he did not establish the manifest
injustice necessary for the post-sentence withdrawal of his guilty plea.
Accordingly, the trial court did not err in denying Appellant’s motion to
withdraw his plea.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2015
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